NGO Submission to UNHCR's Executive Committee
Standing Committee
5-7 July 2000

Mr. Chairman and Distinguished Delegates:

I am Wendy Young of the Women's Commission for Refugee Women and Children. On behalf of the NGO community, I would like to urge government members of the Executive Committee to reaffirm their legal obligation to protect refugees by condemning the interception of asylum seekers and refugees. This includes interdiction of asylum seekers and refugees in territorial waters or on the high seas. Interception in order to prevent, disrupt, or stop the movement of asylum seekers and refugees across international borders violates the language and spirit of the Refugee Convention. The principle of non-refoulement is not based on where refugees and asylum seekers are intercepted as some States have posited, but rather to where refugees and asylum seekers are being returned.

We are gravely concerned that the draft paper falls short of embracing non-refoulement as the principle that should ground any UNHCR statement on interception. Instead, the paper seeks to balance a State's concern for the control of irregular migration against its obligation to protect refugees and asylum seekers.

Often, interception programs are undertaken under the rubric of immigration enforcement, with a focus on cracking down on international smuggling or trafficking of human beings. Emphasizing the law enforcement aspects of such migration movements ignores the fact that asylum seekers and refugees who are exercising their right to seek protection may comprise or be part of the smuggling or trafficking victim population.

While we agree with the need to combat smuggling or trafficking operations that are abusive toward migrants, including refugees and asylum seekers, it is imperative that such law enforcement operations not criminalize refugee flight or deny access to refugee determination procedures.

Furthermore, interception efforts may be prejudicial in nature, often focusing on certain nationalities whom States deem to present a threat to national security, because of their large numbers, proximity to the country of destination, involvement with smuggling or trafficking operations, or other factors.

Interception often results in the following troubling phenomena:

• A denial of access to refugee determination procedures;
• A denial of access to UNHCR and NGOs able to assist asylum seekers through the refugee determination process;
• A lack of oversight by official agencies charged with identifying and assisting asylum seekers who arrive in the territories of States. Instead, interception is frequently carried out by law enforcement or coast guard authorities;
• Reliance on transit countries in which individuals are intercepted or transfer of individuals to third countries, which may have weak refugee protection regimes, thus placing refugees in a situation in which they may be returned to a country where their life or freedom may be threatened;
• A lack of procedural protections even when refugee screening is conducted, such as adequate interpretation services;
• The inherently chaotic atmosphere that interdiction presents, including the intimidation asylum seekers may experience when confronted by law enforcement or coast guard officials, the trauma, poor health, and fatigue that results from flight, and the lack of privacy provided on board; and
• A denial of assistance and protection to populations at risk, such as women and children.

We urge the Executive Committee to embrace the following fundamental principles in any statement regarding interception:

• That interception efforts that prevent asylum seekers and refugees from entering the territory of a State violate Article 33 of the Refugee Convention, the obligations of which apply without geographical limitations;
• That intercepted individuals must have a full opportunity to present their claims through the refugee determination process. This includes access to UNHCR and NGOs which can assist asylum seekers and refugees, as well as adequate interpretation services and an opportunity to rest and receive medical care, food, and water;
• That any screening process must be based on a generous standard that ensures that all possible claims to refugee status are given fair consideration. States must take affirmative steps to inform intercepted individuals in their language of the right to apply for asylum;
• That interdicted individuals should be disembarked on to dry land;
• That interception efforts should not be applied in transit countries nor intercepted individuals transferred to third countries when there are doubts about the capacity or willingness of such countries to entertain refugee claims or to refrain from returning individuals to persecution;
• That victims of smuggling rings should not be penalized or denied refugee protection because of the means used to seek entrance into the asylum country;
• That interception should never occur without oversight from appropriate government officials, UNHCR, and NGOs with expertise in assisting refugees; and
• That the primary purpose of interdiction efforts should be to protect the lives of refugees and asylum seekers in distress at sea.

In conclusion, interception presents a very serious challenge to the international refugee regime that could undermine carefully developed principles of protection and assistance. We urge the Executive Committee not to adopt a conclusion that addresses interception unless there is a clear consensus among member States that embraces the principles outlined above.

Thank you for considering our input on this critical issue.