Statement by Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, at the Inter-Governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia (IGC), Washington, 6 May 1997

Mrs. Oakley, Mr Appave, Ladies and Gentlemen,

It is with great pleasure that I participate today in the full round of the IGC consultations. I would like to thank you, Mrs. Oakley and your colleagues, as well as Mr. Appave and his staff for the preparations and the documentation for this meeting. We value the work of the IGC and the informal spirit in which the consultations take place. This forum is a good opportunity to exchange views on issues of concern to my Office.

We welcome the new "think tank" activities undertaken by the IGC. The first of these activities was a Colloquium co-hosted by my Office, entitled "The Impact of Migration Control Measures on Refugee Protection", which was held in Geneva last February. Coerced population movements today are complex in their causes, and the distinction between voluntary and forced migrants is not as clear as it may appear to be. On the other hand, I believe it remains essential to distinguish - in admission policies and in the public debate - between refugees fleeing persecution and conflict, and people moving for economic and social reasons.

Responses by first world countries to migratory pressures cannot be exclusively, or even mainly, based on measures of control and exclusion. This will not solve the problem and risks further undermining fundamental refugee protection standards. The only way in which the problem can be effectively addressed is through comprehensive policies encompassing the entire continuum of forced population flows from their causes to their eventual solutions. Such policies should include the following elements:

• First, provision of effective protection to those fleeing not only persecution, but also war and violence. The institution of asylum must continue to be upheld for all these groups, even on a temporary basis as necessary, until a durable solution may be found for them;

• Second, appropriate migration policies for those who are moving for economic and social reasons;

• Third, greater commitment to address the root causes of forced migratory movements, in the context of conflict prevention as well as conflict resolution. We all know that competition for scarce economic resources causes political and social tensions and conflicts which in turn lead to forced displacement. Dealing with the problem of migration requires vigorous action to combat poverty, economic and social inequalities, illiteracy, unemployment and poor health conditions in the developing world. Appropriate development assistance must therefore be part of this strategy, especially in regions prone to generate displacement;

• Fourth, consistent national and international action to ensure respect for human rights and democratic and good governance. Such action should be an essential part of foreign affairs and post-conflict reconstruction policies.

I mentioned prevention. In this context, let me recall the Programme of Action endorsed by the Conference on Displacement in the CIS, which we organized last year with the OSCE and IOM. Our follow-up programmes include the promotion of new legislation, training of judicial and police personnel and support for local NGOs and government structures dealing with refugees and human rights. The Programme of Action also aims at promoting minority rights, including freedom of movement. We are convinced that such programmes and concepts can have important preventive effects. Yet, donor support for UNHCR's and IOM's follow-up activities has been lukewarm. If we are serious about averting unnecessary displacement, the international community should be prepared to invest far more energy and resources in the preventive domain. We also need continuous support for our efforts to expand the refugee protection infrastructure in the countries of eastern Europe. Tangible progress has already been made, but much more needs to be done.

One of the results of increasingly restrictive refugee and immigration policies is that persons in search of protection are forced more and more to resort to traffickers to reach safety. While trafficking cannot be condoned, this development undermines the credibility of asylum-seekers and lends itself to the dismissal of refugee claims. The fact that bona fide asylum-seekers arrive in a country helped by traffickers, should not turn them into criminals or into accomplices to crime. If anything, they are themselves victims of the traffickers, to whom they have had to pay large amounts of money to buy their way to safety. Refugees and asylum-seekers are, thus, doubly victimized: first, by the situation of persecution or danger that caused them to leave their country and, second, by the greediness of unscrupulous people willing to make profit out of compelling human needs. Therefore, I welcome the special attention the IGC is paying to this issue as well as the initiative by the Governments of the United States and Canada to fund a two year project for a worldwide study on the trafficking of women and children. Trafficking acquires particularly heinous connotations when its victims are women and children.

Let me now discuss in more depth the provision of effective protection to all who need it as an indispensable part of a comprehensive approach to forced population flows. In this connection I would like to offer some reflections on the concept of temporary protection.

The notion of temporary protection is not new. It has been practiced on numerous occasions in Africa, Asia and Latin-America pending voluntary repatriation or, in the case of the Comprehensive Plan of Action for Indochinese refugees, also resettlement. The conflict in the Balkans led to the need to apply temporary protection in Europe for the first time. As the exodus from Croatia and Bosnia and Herzegovina has shown, large-scale movements resulting from wars and civil conflicts may include not only persons who are escaping from the effects of warfare but also persons who, in addition, have valid reasons for fearing persecution on one or more of the grounds stated in the 1951 Convention. These persons should normally be entitled to have their claims considered under national determination procedures and be recognized as refugees.

The required procedures, however, may be impractical in a situation of mass influx. Asylum procedures may be overwhelmed and States may find difficulty in offering permanent stay. The year 1992 was a peak year for asylum requests in Europe and many States had serious difficulty in managing this situation.

It is against this background that I urged States to grant temporary protection to people fleeing in large numbers from the conflicts in former Yugoslavia. Leaving aside who might qualify for refugee status and who might not, the need for protection of these people was evident to everybody. Temporary protection thus became a crucial element of the comprehensive response to the humanitarian crisis in former Yugoslavia, launched by my Office during an international conference held in Geneva in July 1992. As you may recall, our seven point plan aimed at improving humanitarian and human rights conditions in former Yugoslavia, while at the same time ensuring protection abroad for those fleeing across borders as well as respect for the right to return of those expelled from their homes. Another important factor was the intensive peace making efforts, first by the European Community and later by the International Conference on Former Yugoslavia or ICFY. At the time, there was hope that these political efforts would succeed and pave the way for repatriation, and hence that the need for protection would not last very long.

Temporary protection was therefore conceived as a practical and flexible protection instrument while the search for solutions was actively underway. This is how we view temporary protection, namely as part of a comprehensive humanitarian strategy which in turn is aligned with political conflict resolution. It reflects the temporary, emergency nature of genuine protection needs. It is an instrument meant to balance the protection needs of people with the interests of States receiving them.

In the context of the conflict in former Yugoslavia, temporary protection was recommended for:

• persons coming from areas affected by conflict and violence;

• persons who had been or would be exposed to human rights abuses, including those belonging to groups compelled to leave their homes by campaigns of ethnic or religious persecution;

• and persons who for other reasons specific to their personal situation were presumed to be in need of protection.

As I mentioned before, the issue of whether those concerned were or were not refugees as defined in the 1951 Convention was not addressed. Interpreting temporary protection as an exception to the asylum regime deriving from the 1951 Convention, is in our opinion not correct. Therefore, the standards that are provided for under a temporary protection regime must be regarded as interim measures of protection, not as a substitute for the provisions of the 1951 Convention.

What are these standards? First of all, persons in need of international protection should be admitted to the territory and should be protected against refoulement, including rejection at the frontier. Second, they should be treated in a manner compatible with generally accepted international human rights and humanitarian principles. We have accordingly advocated that the beneficiaries should be provided with a defined legal status allowing them to remain in the territory on a temporary basis. Moreover, we believe that it is essential that standards of treatment should improve progressively over time, particularly in situations of protracted stay. We attach particular importance to possibilities for family reunification.

Temporary protection should not be seen as a solution to the refugee problem. As I said, we see it as an essential component of a comprehensive approach, involving concerted international efforts to promote a peaceful settlement.

Comprehensive responses also imply burden sharing, including providing assistance to regional countries of asylum which are often the most affected. Burden sharing applies in our view to all phases of a refugee problem, from its inception in the country of origin, to the initial outflow and asylum period, and to its resolution through the implementation of lasting solutions. Our experience in many parts of the world, including in Europe, teaches us that burden sharing is crucial to ensure effective protection to all who need it. UNHCR therefore promotes the implementation of burden sharing arrangements. We are, though, guided by our mandate which means that any such arrangement must meet minimum requirements of protection. The other side of the coin is that the existence of burden sharing arrangements must not be made a pre-condition for extending protection - just as burden sharing must not in effect become the cover for burden shifting. You may recall that at times we encountered serious difficulties in getting Bosnians admitted to Croatia as the authorities insisted on onward travel to third countries or on receiving guarantees of resettlement.

The ultimate goal of all efforts should be to ensure that people who are forced to flee their country, can exercise their right to return in safety and dignity. In the case of former Yugoslavia, there was even more reason for the international community to emphasize this right because of the widespread condemnation of ethnic expulsion policies.

The focus on return also provides the rationale for standards of treatment which emphasize the provisional aspect of the refugees' stay. At least in the initial stages, efforts to promote integration are therefore not undertaken. It is clear, however, that the waiting period for safe return cannot be unlimited, neither for the beneficiaries nor for States. At a certain point, if conflict resolution does not materialize, the refugees' need for stability and greater certainty may necessitate a change in approach in which alternative solutions, including permanent asylum, must be explored. I am therefore very pleased to note that several States have adopted legislation which provides for a more permanent status after a certain period of time.

On the other hand, there is no doubt that temporary protection should be brought to an end if there is a change in the circumstances that caused people to flee, i.e., when the dangers they were escaping from no longer exist. In such situations, I believe that States should be encouraged to let repatriation proceed first on a voluntary basis. Any individual still claiming fear of persecution, should be given the opportunity of establishing his or her claim in the framework of normal refugee determination procedures. Furthermore, returns should be carried out in a dignified manner and with due respect for human rights and humanitarian standards, taking into account factors such as the availability of reception facilities and the possibilities of reintegration.

In Bosnia and Herzegovina the guns have fallen silent, amnesties - although imperfect - have been declared and human rights mechanisms have been set up. For these reasons I stated in December last year that there is no longer a need for across the board temporary protection. Many Bosnians have returned, and our aim is to encourage repatriation of another 200,000 to so called majority areas this year. The main problem remains the inter-entity or 'minority' returns which are still obstructed, especially on the Serb and Croat side. There have been only few of such returns despite enormous efforts on our side. To facilitate freedom of movement, my Office has been running buses across inter-entity lines. We will also promote so-called 'open cities' in Bosnia. Local communities welcoming back former residents of all ethnic groups will be rewarded with targeted reconstruction assistance. We shall continue to try to make these returns possible, but we need to be backed up by far more political pressure on the parties and economic incentives.

In the meantime, I am asking asylum countries not to expel people originating from the 'minority areas'. Their need for international protection still exists. Dayton recognizes the right of refugees and displaced persons to return to their own homes and not to be forced into relocation in areas where they would be part of the ethnic majority. In the Bosnian Federation there is no housing available even for people originating from there. It is not reasonable to send people back to such a situation against their will, especially as long as there is no genuine prospect of safe return to their own region. This would not be in line with the Dayton Agreement and would not be good for maintaining peace and stability in the region. Like others we are extremely concerned that other than voluntary returns of this category of people will add to the already existing frustration and pressure. We are worried about peace in Bosnia. I am therefore requesting asylum countries to be very prudent.

Based upon our experience in former Yugoslavia, the ending of temporary protection requires a need for a differentiated approach taking into account the particular circumstances of the various categories of people: repatriation for some groups while others require continued protection. This, however, does not imply a failure of the concept of temporary protection. On the contrary, many Bosnians have returned and will return. We should not forget either the high number of citizens from Croatia who repatriated shortly after the cessation of hostilities. The current mixed pattern in the ending of temporary protection is not the result of a deficient protection concept, but of the dramatically changed political and ethnic landscape of Bosnia.

Before concluding I wish to express my deep appreciation for the protection and assistance offered during the Bosnian crisis. We need to examine the impact of burden-sharing or the lack of it. Based on lessons learned, we need to examine further the different interpretations of the concept of temporary protection: definition and beneficiaries, standards of treatment and yardsticks and modalities for the phasing out. In our view there is clearly a need to seek a harmonized approach to these issues. I am encouraged to see that several consultative processes are currently taking place, particularly in the European Union context between the Commission and Member States on the Proposed Joint Action on Temporary Protection. I should like to reaffirm the preparedness of my Office to contribute to such efforts with its expertise and experience.

Madam Chairperson, let me conclude. We see a positive future for temporary protection as a policy instrument in specific emergency situations combining the interests of people seeking safety with the interests of States receiving them. That is our goal. In the search for solutions we see temporary protection as an indispensable element of the comprehensive response to humanitarian and political crises that is needed so badly to confront the challenges of the future. I wish you every success in your consultations.

Thank you.