Standing Committee of the Executive Committee
of the High Commissioner's Programme
(29th Meeting)
9-11 March 2004

Agenda Item 3 (ii) (a)
NGO Statement on the Americas

Thank you, Mr. Chairman.

This statement has been drafted in consultation with, and is delivered on behalf of, a wide range of NGOs.

While there are a number of concerns in the region, we have chosen, in this statement, to turn our attention to some of our most recent developments, including the protection concerns regarding Haitians, detention and removal practices, a Safe Third Country Agreement between Canada and the U.S., the pursuit of a Dublin-like agreement in the region, as well as the situation of Colombian refugees and IDPs.

Turning first to the volatile situation in Haiti, we are concerned about unmet refugee protection needs. We are witnessing States in the region implementing measures to prevent and deter the arrival of Haitians in their territories. Such measures include interdiction and the summary return of Haitians on the High Seas and in the territorial waters of the region, including the United States and the Bahamas. It is important that States do not confuse their obligations of rescue at sea with their refugee protection obligations. We recognize a nation's duty to rescue someone at sea if the person is clearly in danger. In the case of the more than 1000 Haitians interdicted by the United States to date, there has been no report that they requested such rescue. In any case, the obligation to protect through rescue at sea should be followed by meaningful refugee protection.

Failure to extend to Haitians fair and impartial procedures for the determination of their refugee status violates the core principles of the 1951 Refugee Convention and the 1967 Protocol, principles that have been reaffirmed in numerous ExCom Conclusions, including 97, 22, 82, and 85. Numerous other UNHCR declarations and guidance further affirm these principles. For example, the Plan of Action in the Agenda for Protection (AfP) and the UNHCR Background Note on the Protection of Asylum-seekers and Refugees Rescued at Sea give detailed guidance. Relevant excerpts of these conclusions are submitted as an addendum to the written statement of this intervention. We remain deeply concerned that Haitian refugees are being refouled to conditions where their lives and safety are in jeopardy.

We call upon States in the region to replace interdiction policies with policies based on principles of protection and non-refoulement - obligations that arise from the instruments cited above.

We also urge that the following concrete steps be taken: that States engage in meaningful refugee processing that is grounded in the promotion of appropriate durable solutions, including resettlement; that States keep their borders open to asylum-seekers; that the international community provide support, in particular to the Dominican Republic, for the asylum, protection and humanitarian needs of such people; and that States enable UNHCR to be present on ships in the region to advocate for meaningful refugee protection; and that all States cooperate with UNHCR to assure that all fleeing Haiti are provided with protection and assistance.

We particularly call upon the government of the United States to provide protection of Haitians. We note with deep concern the interdiction and summary return, contrary to the principle of non-refoulement, of more than 1,000 Haitian boat people who fled their homeland. These returns were conducted without fair and impartial procedures to have their status determined and, in many cases, without the provision of appropriate interpretation services. Virtually every single person who fled Haiti and was interdicted by U.S. authorities during the time of the most extreme political chaos and violence was forcibly returned. Furthermore, there were no arrangements in place to assure that these returns were conducted in a safe and secure manner, which is particularly problematic given the conditions in Haiti, which were well known.

We are also concerned about ongoing government policies in the region that fail to assure refugee protection. One example in the United States is expedited removal - the opaque process by which individuals suspected of attempting to enter the United States through fraud, misrepresentation, or without documents are summarily deported. Asylum-seekers caught up in the expedited removal process are kept in prisons and detention facilities at least until they get an asylum screening, and many for months longer. Some legitimate asylum-seekers have been criminally prosecuted for entering with false documents. Expedited removal was initially applied only at ports of entry, but has since been expanded - a propos to Haiti - to unauthorized "non-Cuban" boat arrivals. We are concerned by the expansion and call on the U.S. to refrain from any further expansion. This is particularly important because there has been no public dissemination of the UNHCR Study on the subject and a forthcoming study by the U.S. Commission on International Religious Freedom. Both should be vigorously discussed and debated and the U.S. should carefully consider the studies and analysis from the NGO community regarding further policy changes.

With regard to detention practices, we welcome the recent U.S. decision to transfer custody of unaccompanied children from the Department of Homeland Security to the Department of Health and Human Services. It provides better options for meeting their protection needs. However, we remain troubled by U.S. detention practices that continue to be inconsistent with international human rights standards, including the principle of no-discrimination and UNHCR's guidelines on detention.

The bullet point report on the Americas notes the signing of the so-called "Safe Third Country Agreement" between Canada and the United States (for which implementing regulations were published on March 8, 2004), and mentions a role "to be defined" for UNHCR to monitor the agreement.¹ We recall UNHCR's duty to monitor States' practices and States' duty to facilitate such monitoring, pursuant to Article 35 of the 1951 Convention. We call for access for UNHCR and NGOs to enable them to monitor in a transparent and effective way the implementation of the agreement. We continue to have deep concerns that the agreement will undermine refugee protection practices in both States.

We urge UNHCR, the United States and Canada to address some of the root causes that led to the impetus for the Memorandum of Understanding (MOU) with Canada; namely, that the United States has increasingly become a transit country, and Canada a destination country, for asylum-seekers. In part, this is attributable to the U.S. policy, in place since 1995, that asylum-seekers have access to neither employment authorization nor public assistance. Until asylum-seekers in the United States are allowed to lawfully work or receive public assistance, the MOU will lead to an increase in asylum-seekers who cross, or are smuggled across, the US-Canada border. Other reasons include the fact that many asylum-seekers have family ties in Canada and the differences between Canadian and U.S. refugee law interpretation. As a step in addressing root causes, we commend U.S. government officials for releasing a supportive brief calling for the protection of asylum-seekers with gender-based claims. We urge the U.S. government to take this one step further by adopting generous standards regarding gender-based asylum claims.

We note with concern the reference in the Americas report that the MERCOSUR Working Group on Migration is pursuing "a Dublin-like agreement on transfer of State responsibility for assessment of asylum claims." ² The Dublin Convention is a seriously flawed document, which has permitted the signing of numerous bilateral readmission agreements with countries outside the EU that fail to provide adequate protection for asylum-seekers. This has resulted in reduced refugee protection, leading to chain deportations and the denial of meaningful assessments of asylum claims.

Turning to Colombia, we note that a general challenge for refugee protection in Colombia's neighbouring countries has been that the focus on national security interests and protection against terrorists has infringed on the right to protection. This has particularly been the case for Venezuela and Panama, but increasingly also for Ecuador. In Venezuela, many Colombian refugees are still being detained and sent directly back without UNHCR gaining access to them. We are also concerned by bilateral agreements between Colombia and neighbouring countries on the repatriation of Colombian refugees. These agreements are not in line with international standards in that they do not adequately address the principle of voluntary return in security and dignity.

In Colombia, law 387 on the protection of IDPs provides a framework to ensure that the rights of IDPs are respected. However, the government-induced return processes of IDPs in Colombia have not necessarily provided IDPs with adequate information about the situation in the return areas, and the government is not capable of guaranteeing their security upon return. The issue of dignity is also questionable, as the humanitarian situation in the return areas is, more often than not, extremely difficult and the returnees only receive aid for three months. The right to receive humanitarian aid is violated in many areas of Colombia today, as humanitarian organizations do not have access to IDPs and other civilians in need. There must be efficient implementation of Colombia's law 387 on the protection of IDPs by the government, as well as full implementation of the Guiding Principles on Internal Displacement, including prevention of forced displacement, access to humanitarian aid and the right to return or resettle.

Thank you.

ADDENDUM OF RELEVANT ExCom Conclusions and UNHCR Guidelines

1. Executive Committee Conclusion No. 97 (10 October 2003) Protection Safeguards in Interception Measures states:

"All intercepted persons should be treated, at all times, in a humane manner respectful of their human rights. State authorities and agents acting on behalf of the intercepting State should take, consistent with their obligations under international law, all appropriate steps in the implementation of interception measures to preserve and protect the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment of punishment of persons intercepted;

"Interception measures should not result in asylum-seekers and refugees being denied access to international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground, or where the person has other grounds for protection based on international law. Intercepted persons found to be in need of international protection should have access to durable solutions.

"The special needs of women and children and those who are otherwise vulnerable should be considered as a matter of priority."

2. Executive Committee Conclusion No. 22 (1981) states:

"In situations of large-scale influx, asylum-seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below. They should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity.

"In all cases the fundamental principle of non-refoulement including non-rejection at the frontier-must be scrupulously observed."

3. Executive Committee Conclusion No. 82 states, and the principle is confirmed, in Executive Committee Conclusion No. 85:

"The need to admit refugees into the territories of States, which includes no rejection at frontiers without fair and effective procedures for determining status and protection needs."

4. Numerous other UNHCR declarations and guidance affirm these principles. For example, the Plan of Action in the Agenda for Protection, of which the United States was a principal architect, calls upon States to ensure "that immigration-control measures are tempered with adequate protection safeguards which appropriately differentiate between refugees, on the one hand, and persons not in need of international protection, on the other, to enable protection needs to be met within the agreed international framework."

5. The UNHCR Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea from the Global Consultations, gives detailed guidance on internationally accepted State practice relating to sea interdiction and mass influxes. Recent US conduct off the coast of Haiti is at odds with UNHCR's description of accepted State practices consistent with international legal standards. In particular, the UNHCR Background Note on the Protection of Asylum-seekers and Refugees Rescued at Sea states:

"[I]t is clearly understood and accepted by States that fair and efficient procedures are an essential element in the full and inclusive application of the 1951 Convention.... The principle of access to fair and efficient procedures is equally applicable in the case of asylum-seekers and refugees rescued at sea. The reasons motivating their flight and the circumstances of their rescue frequently result in severe trauma for the persons concerned....

"In UNHCR's view, the identification and subsequent processing of asylum-seekers is an activity most appropriately carried out on dry land. Onboard processing, both in the form of initial screening and more comprehensive determination, has been attempted in past refugee crises. It proved problematic in various respects, including inter alia, ensuring adequate access to translators, safeguarding the privacy of the interviews carried out under difficult conditions on board ship, ensuring access to appropriate counsel and providing appropriate appeal mechanisms....

"The first priority in most instances remains prompt and safe disembarkation followed by access to fair and efficient asylum procedures. An effective response to the challenge of properly identifying asylum-seekers should therefore acknowledge that the status of the rescued persons is best determined by the appropriate authorities after disembarkation."

NOTES

1. UNHCR Bullet Point Report on the Americas, Page 1, Introduction. Bullet point no. 2, March 2004.
2. Ibid. Page 4. Promotion of Refugee Issues in Regional Bodies (Goal 1/Obj.1.4-AfP Goal 1).