Review of selected issues for future consideration by the Sub-Committee of the Whole on International Protection

EC/SCP/56

Introduction

1. Since its first meeting in 1976, the Sub-Committee of the Whole on International Protection has considered a wide variety of subjects relating to the protection of refugees. These subjects have differed both in scope and content and have been dealt with procedurally by the Sub-Committee in a variety of ways. In order to facilitate future meetings of the Sub-Committee, it is proposed to assess its past methods of work and, against this background, to review possible subjects for future discussion. To this end, the present Review provides a brief overview of the origins of the Sub-Committee, the issues it has dealt with in previous meetings and the role it performs in the overall structure of international protection. It also briefly presents some basic issues which could usefully be discussed at future meetings of the Sub-Committee so as better to respond to current needs in the area of international protection.

Origins of the Sub-Committee

2. One of the main functions of the Executive Committee, pursuant to General Assembly Resolution 1166 (XII), consists in "advising the High Commissioner, at his request, in the exercise of his functions under the Statute of the Office." With a view to strengthening the capacity of the Executive Committee to carry out this function as it relates to refugee protection, it established, in 1975, a Sub-Committee of the Whole on International Protection. lt was agreed that the Sub-Committee should meet during the session of the Executive Committee and that it "would study in more detail some of the more technical aspects of the protection of refugees and would report to the Committee on its findings".¹

3. The Sub-Committee met for the first time in 1976. It held a total of three meetings concurrently with the Executive Committee plenary session and discussed seven general issues relating to refugee protection. While it elaborated the Executive Committee's general conclusion on international protection, it considered no other conclusion or decision for submission to the Plenary.

4. In the course of the general discussion during this meeting, members of the Sub-Committee stressed the paramount importance of UNHCR's protection function and the gravity of the problems confronting the Office in the protection field. They felt that the Sub-Committee should be able to make a thorough study of these problems and explore solutions to them. One delegation suggested that the Sub-Committee's most important task would be "to determine any shortcomings in the legal situation of refugees and in the protection afforded them by governments" and to "seek ways and means to help overcome them".² This view of the objectives of the Sub-Committee was shared by other Sub-Committee members and was accordingly reflected in the decision adopted by the Executive Committee at the end of its session.³

5. To allow sufficient time for better consideration of the issues to be addressed, meeting arrangements were changed and, in 1977, the Sub-Committee met for one day prior to the Executive Committee session. It dealt with five topics in just under six hours of discussions and addressed recommendations to the Executive Committee on all of them. Subsequently, the length of the meetings was extended to two days. Since 1986, United Nations financial restrictions have required that they be shortened to one-and-a-half days.

Subjects considered by the Sub-Committee

6. Since its inception, the Sub-Committee has discussed some 25 different subjects. As the Sub-Committee was established to assist the Executive Committee in providing advice on protection matters at the request of the High Commissioner, the selection of topics is undertaken by UNHCR, which also acts as the Secretariat of the Sub-Committee. Informal consultations with governments normally precede formalization of the agenda and are undertaken by the Office in preparation for subsequent meetings of the Sub-Committee. States' representatives have a formal opportunity to propose subjects for possible consideration in future meetings under the recurring agenda item "Any Other Business" .

7. To date, most subjects have been considered only once, but certain intricate protection topics have recurred on subsequent agenda of the Sub-Committee. For example, Problems related to the Rescue of Asylum-Seekers in Distress at Sea as well as Military and Armed Attacks on Refugee Camps and Settlements were both dealt with at six consecutive meetings of the Sub-Committee.

8. Not all topics discussed by the Sub-Committee have given rise to conclusions by the Executive Committee, although this is generally the practice. Difficulties in agreeing upon a consensus text initially prevented the Sub-Committee from recommending a conclusion on the substance of military and armed attacks on refugee camps and settlements. For the same reason the Executive Committee has yet to adopt a conclusion on the Irregular Movement of Refugees and Asylum-Seekers, which was discussed by the Sub-Committee in 1985.

Methods of work

9. Since the meeting in 1977, UNHCR has prepared a background note on each topic to be addressed to facilitate discussion in the Sub-Committee. These documents have deliberately been kept brief and concise, so as to ensure their manageability within the limited available time. Depending upon the complexity of the matter, however, UNHCR has had, on occasion, to commission more detailed studies from experts outside the office. This was, for example, the case with the study undertaken in 1982 on Military and Armed Attacks on Refugee Camps and Settlements and another on Irregular Movements of Refugees and Asylum-Seekers commissioned by the Office some three years later.

10. The majority of the subjects are discussed and concluded during the Sub-Committee meeting itself. Certain issues have, however, required different handling. Informal working groups have, for example, been established for some subjects in order to prepare for a more focused discussion in the Sub-Committee. This was, for example, the case with Irregular Movements of Refugees and Asylum-Seekers in 1985. On at least two occasions, Round Table discussions were organized for the same purpose (Protection of Asylum-Seekers in Situations of Large-Scale Influx in 1981 and Voluntary Repatriation in 1985). In addition, as in the case of Detention of Refugees and Asylum-Seekers in 1986, it is not uncommon for the Sub-Committee to establish an informal open-ended working group during the meeting to assist in drafting and negotiating particularly intricate conclusions.

11. With the exception of its meeting in 1979, when the Sub-Committee considered only the issue of Refugees without an Asylum Country, it has always dealt with two or more topics at each meeting. Seven issues were under consideration in 1977, five in 1985 and three during most other meetings.

Conclusions of the Executive Committee

12. The conclusions drafted by the Sub-Committee and recommended to the Executive Committee for adoption are formulated in differing ways. The structure of most of them follows the standard format for resolutions adopted at international fora. Most contain calls on States or international organizations to recognize or abide by specific responsibilities or to undertake certain recommended action. A few, however, are drafted in narrative language, as with the conclusion adopted on the Protection of Asylum-Seekers in Situations of Large-Scale Influx, as well as the conclusion adopted in 1985 on Voluntary Repatriation.

13. The conclusions, which the Executive Committee customarily adopts by consensus, evidence an important measure of State support for particular protection practices and standards. They do not impose legal obligations on States or UNHCR, but contain guidelines which can serve as an international basis for States when developing or orienting their national policies on refugee issues. They are particularly valuable to UNHCR in its dealings with governments on refugee protection issues and when developing its own doctrine.

Future work of the Sub-Committee

(a) Methodology

14. The Sub-Committee has a crucial role to play in strengthening the capacity of the Executive Committee to fulfil its functions and thereby actively and positively contribute to the international protection of refugees by identifying existing shortcomings in the field of refugee protection and by suggesting suitable remedies, in the form of recommended practices, to the international community.

15. Given the importance of this task, it may be useful to limit the number of topics discussed by the Sub-Committee during its annual meeting, normally to one or two. This would permit the Sub-Committee to consider all aspects of the chosen issue in depth and provide it with sufficient time to draft the corresponding conclusions. This is all the more important given the contentious nature of many of the subjects which require study by the Sub-Committee. For this latter reason, it may also be considered useful to hold in-depth discussions on certain topics in the Sub-Committee without necessarily aiming at obtaining immediate agreement on specific conclusions. This method would have the added advantage of providing UNHCR and members of the Sub-Committee with exposure to the full range of views and concerns of States in relation to specific topics.

16. As regards the methods of work, it would appear that a certain amount of flexibility will have to continue to prevail to ensure that each topic is adequately treated. Thus, the use of informal working groups between annual meetings and the treatment of a particular subject over several years may well he justified depending on the complexity of the issues involved. As regards the conclusions themselves, thought might be given to greater use being made of a more precise and concise narrative style, since it can permit a more nuanced presentation of the issues.

(b) Agenda

17. Given that the main task which the Sub-Committee is expected to fulfil is that of highlighting existing shortcomings in the area of refugee protection with a view to recommending appropriate responses, the following issues are identified as likely to benefit from more detailed consideration in the future.

(i) Refugee Protection and Human Rights

18. The protection of refugees operates within a broad framework of individual rights and responsibilities of States. These rights and responsibilities have, at their origin, a philosophy recognizing the uniqueness and worth of the individual person and the imperative of preserving life and promoting human development in a just society. Human rights law, which derives from the same origin, is a source of many existing refugee protection principles and structures, and also complements them. At its session in 1988, the Executive Committee "noted the direct relationship between the observance of human rights standards, refugee movements and problems of protection." Against this background the relationship which exists between Refugee Protection and Human Rights requires more detailed examination, in part with a view to identifying the mutually supportive aspects of this relationship.

(ii) Security of Refugees

19. Although international refugee instruments do not specifically refer to the security of refugees, it is well appreciated that the safety and well-being of refugees are primary concerns both of States and of UNHCR. Recurring reports submitted to the Executive Committee testify to the wide variety of circumstances in which the security, indeed the very survival, of refugees is threatened in different parts of the world. Some of these have been submitted to more specific examination by the Sub-Committee, but no comprehensive consideration of the problem has yet been undertaken. Such an approach, in the form of a detailed study and review of the Security of Refugees, may assist in developing new approaches to safeguarding their safety and well-being.

(iii) Resettlement and Refugee Protection

20. Resettlement in a third country, on an emergency basis, serves as an urgent protection measure for certain individual cases in order to ensure their survival in safety and dignity. The need for urgent resettlement, where this is essentially a means of providing protection to refugees, is a global one, yet resettlement programmes may not be easily adaptable to the urgency of such situations. By considering Resettlement and Refugee Protection, the Sub-Committee may be able to recommend how the resettlement mechanisms might be adapted to respond more speedily to such urgent protection requirements.

(iv) Border Control Mechanisms in the Context of Refugee Protection

21. Over recent years, in a number of countries in several parts of the world, there has been an expansion of border control mechanisms or arrangements designed to check certain categories of arrivals. These have included, for example, legislation strengthening the liabilities of airlines for the transport of improperly documented passengers. States clearly have a legitimate interest in controlling irregular migration and the right to do so through appropriate border measures. However, given the special protection problems confronting refugees, including inevitable difficulties many refugees will face in applying through regular national channels for a passport or a visa, there is a need to examine border control mechanisms in the context of refugee protection. A main purpose would be to identify the problems in this regard and to suggest how it could be assured that such controls are compatible with basic principles of refugee protection and the proper operation of the asylum process.

(v) Treatment of Rejectees

22. Recent years have also seen a build-up of large numbers of persons who have gone through the full refugee status determination procedure and whose request for status has been met with a final denial. Amongst this group, experience has shown that there will be a number of persons whose particular circumstances require continued humanitarian involvement by the international community and for whom a humane solution may have to be identified. In-depth consideration by the Sub-Committee of the Treatment of Rejectees should help in determining the dimensions of the problem, appropriate solutions and the role, if any, which UNHCR should or could play.

(vi) Protection of Personal Data on Refugees

23. National authorities as well as UNHCR have to seek and record personal data on refugees, sometimes of a sensitive nature, in order to perform their respective protection functions. While the principle of confidentiality applies to such data, data protection legislations provide additional norms for the handling of data. This development is particularly relevant to electronically stored and transmitted data and influences the trans-border flow of personal information. Protection of Personal Data of Refugees may therefore usefully be discussed by the Sub-Committee, inter alia, with a view to complementing the work undertaken by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities in the related area of protection of computerized personal data.

(vii) International Protection and Refugee Women

24. Finally, the Sub-Committee studied International Protection and Refugee Women in 1985 and the Executive Committee adopted a Conclusion on the subject the same year. Since then, UNHCR has developed and refined policies and programmes relating to women refugees. Based on this experience, which includes a broader view of the international protection issues as they relate to women refugees, further consideration of the subject by the Sub-Committee may assist in the elaboration of more comprehensive guidelines for the protection of women refugees.

Conclusion

25. The Sub-Committee plays an important role by assisting the Executive Committee in providing constructive advice at the request of the High Commissioner on issues relating to the treatment and protection of refugees. Given the intricate and sometimes contentious nature of several of the subjects which would merit examination by the Sub-Committee, it is, however, crucial that its role be properly understood and that sufficient time and energy is provided for considering each issue. The Sub-Committee is, therefore, invited to reflect on its methods of work and the type of issues to be examined in the future. While discussions on the substance of the issues identified in this Review are not expected, members of the Sub-Committee may wish to consider their general suitability as well as to suggest other possible subjects which may merit discussion. The ultimate aim of this process is to facilitate the planning of the work of the Sub-Committee and thereby ensure the highest quality of its work and its relevance to today's refugee protection problems.

1 United Nations Document A/AC.96/521, paragraph 69 (h), page 14.

2 United Nations Document A/AC.96/534, paragraphs 65-67, page 13.

3 Ibid, paragraph 87 (i), page 17.