54th Session of the Executive Committee of the
UN High Commissioner for Refugees' Programme
29 September - 3 October 2003

INTERNATIONAL PROTECTION

NGO SUBMISSION FACILITATED BY ICVA WITH INPUT FROM A WIDE VARIETY OF NGOS
2 October 2003

Mr. Chairman,

As we noted in our contribution to the General Debate, NGOs are deeply concerned by measures taken or proposed by States that restrict the ability of persons in need of international protection to exercise their fundamental human right to seek and enjoy asylum from persecution.

Effective Protection
The erosion of the international protection regime that we are witnessing is one that must be combated. In order to bolster international protection, there is an urgent need for a clear understanding of the meaning of "effective protection." As long as this concept remains vague and ambiguous, refugees may be denied international protection or returned to danger or persecution. Effective protection must be understood to involve, inter alia, the following elements:

• physical security;
• material security;
• access to humanitarian assistance;
• rule of law;
• a functioning judicial system;
• respect for the rights of refugees, which includes protection from refoulement and respect for their fundamental human rights (including economic and social rights);
• access to secondary educational and livelihood opportunities; and
• timely access to durable solutions.

We are encouraged that States and UNHCR have acknowledged the need to define effective protection. The concept, however, needs further elaboration by UNHCR and this should be done in close collaboration with NGOs.

Interception
Under the rubric of protecting national security, States are increasingly adopting measures on land, at airports, and at sea to intercept migrants and asylum-seekers before they arrive on State territory. Australia, Canada, the United States, several EU Member States, and others are intercepting persons who lack authorisation or who match a certain profile and denying them access to their territory. Some, or even many, of these persons are asylum-seekers or refugees, and as a result of being intercepted are denied the opportunity - possibly their only opportunity - to seek and enjoy asylum from persecution. Disturbingly, because interception often occurs on the high seas or in restricted airport zones, UNHCR, NGOs, lawyers, and other outside observers are often unable to witness and monitor interception practices.

We are particularly concerned by cases of interception that have resulted in the violation of human rights, the denial of access to asylum, and the return of asylum-seekers to their countries of origin without consideration of their asylum claims. States that engage in interception have the responsibility and obligation to ensure that their actions - whether directly or indirectly - do not result in the return of a refugee to a situation where they could face serious danger or persecution.

While there are some important safeguards in this year's draft Conclusion on Protection Safeguards in Interception Measures, we are concerned by the language that suggests that primary responsibility for intercepted persons lies with the State within whose sovereign territory or territorial waters interception takes place. The law of State responsibility applies to any State action, regardless of where that action takes place. Extraterritorial interception must, therefore, be consistent with the State's obligations under international human rights and refugee law. Particularly when interception occurs in the territory of a State that is not party to the Convention or that lacks fair and effective asylum procedures, the intercepting State must accept responsibility for the protection of the person. In other circumstances, responsibility for intercepted asylum-seekers may be shared, so long as this is done equitably, in line with international human rights and refugee law, and with regard to the intercepted person's links with a particular country.

In this respect, we call on UNHCR to elaborate on the Conclusion through the development of Guidelines on Safeguards for Interception Measures, as stated in the Agenda for Protection (Goal 2, Objective 1), which must provide for the full respect of international refugee and human rights principles.

Return
We are concerned that some States are returning rejected asylum-seekers to situations that are not safe. Some of the methods used to return these people are inconsistent with international standards and have placed these people in grave positions of danger. For example, recent research conducted by the Edmund Rice Centre in Sydney with the support of the Australian Catholic University has found that Australia has been returning rejected asylum-seekers to countries where they have only short-term visas and no legal protection. Moreover, it has been reported that, in some cases, returnees have been encouraged by State officials to obtain false passports to speed up their removal from Australia.

Detention
We are very concerned that States are detaining asylum-seekers and refugees in violation of international human rights law and UNHCR's Detention Guidelines. Arbitrary detention, non-reviewable detention and detention on grounds of race or nationality, or on the basis of unfounded assertions of "national security" must stop. States should also abandon their use of detention as a tool to deter or punish asylum-seekers. Further, with reference to the Convention on the Rights of the Child, we stress that children should never be detained.

Basic standards for the treatment of detainees are also being violated by many countries, particularly when the detainees are non-citizens. The harm caused to asylum-seekers when they are detained is well-known. A recent report by Physicians for Human Rights and the NYU Bellevue Program for Survivors of Torture documents significant increases in depression and post-traumatic stress disorder when asylum-seekers are detained. We, therefore, strongly urge States to seek alternatives to detention, as recommended in the UNHCR Guidelines on Detention.

Education as a Tool for Protection
Education, formal and non-formal, primary and secondary, must be recognised as an efficient and necessary form of protection and a core element of humanitarian response in emergency, early reconstruction, and post-conflict situations. Education is an effective means of conveying life-saving messages, assisting communities in establishing a sense of normalcy amidst upheaval, promoting reconstruction and sustainable development, and supporting community-based conflict resolution and peace-building. Education also helps to provide alternatives for children that might otherwise be recruited as child soldiers.

Conclusions Process
The conclusions that ExCom adopts play a valuable role in improving refugee protection and assistance. It is important for us to stress that NGOs also play an important role in refugee protection and assistance and that this experience would be a valuable addition to the ExCom conclusions drafting process. After all, we are partners in the field and we would hope that that partnership would extend to the ExCom conclusions process. We hope that the review resulting from the UNHCR 2004 process will result in closer collaboration with NGOs on the ExCom conclusions.

Partnership
Sharing of experiences and views on roles and responsibilities with regards to how NGOs can complement UNHCR's protection mandate will be essential in further improving our partnership. UNHCR and NGOs need each other to win the tough battles with several governments, who, as the DIP Director stated, do not practice what they preach with regards to upholding the rights of refugees. In this respect, we welcome the initiative of the Director of the Department of International Protection to strengthen the dialogue on protection with NGOs. We also welcome the initiative to develop a toolkit that, we hope, will also help operational NGO staff to better their protection capacities. We also welcome such initiative as they may narrow the gap between protection and assistance that NGOs have noticed on too many occasions in UNHCR's operations in the past.

Statelessness
Another often invisible and forgotten group is the stateless. We were very pleased to see the acknowledgement of statelessness as an important issue that needs to be addressed in the Agenda for Protection (Goal 1, Objective 12) and encourage UNHCR and States to follow-up on their commitments under the Agenda. In particular, as a first step, we once again encourage States that have not already done so to respond to UNHCR's survey so that UNHCR can develop a clear understanding of the scope of the problem with an eye to crafting appropriate long-term solutions.

At the same time, we note with concern that only 55 States are party to the 1954 Convention relating to the Status of Stateless Persons and 27 are party to the 1961 Convention on the Reduction of Statelessness. Even among those that are parties, there is a distinct lack of adequate mechanisms to prevent and to solve cases of statelessness. We call on all States that are not yet parties to both Conventions to sign and ratify them as soon as possible, and to develop mechanisms at the national and international levels to resolve cases of statelessness and ensure access to effective nationality for all persons.

Migrant Workers
Executive Committee discussions about the asylum-migration nexus have, appropriately, focussed on the need to ensure protection for asylum-seekers and refugees. In doing so, however, they have largely ignored the pressing issue of the protection of migrants. In this regard, NGOs welcome the entry into force of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families on 1 July 2003. Migrant workers are one of the fastest growing and most vulnerable populations in many countries. The Migrant Workers Convention is extremely important because it, for the first time, codifies and elaborates international human rights law as it applies to this very vulnerable group of persons. We are disappointed by the low number of ratifications to date and call on all States that have not already done so, to accede to the Migrant Workers Convention as soon as possible.

Thank you.