Standing Committee of the Executive Committee
of the High Commissioner's Programme (30th Meeting)
29 June - 1 July 2004

NGO Statement on
Mass Influx
Agenda Item 4 (iii)

Mr. Chairman,

This statement is delivered on behalf of NGOs.

NGOs welcome this opportunity to reflect on the advance findings of the study on protection responses to situations of mass influx. NGOs look forward to receiving the completed study that will be presented to the Executive Committee in October. We hope that the following observations will be able to inform the final study.

From our experience, serious violations of human rights take place in situations where large numbers of refugees cross an international border at a rapid rate. In many of these instances, refugees arrive in countries that are unable or unwilling to provide effective protection to these persons. Taken together, these circumstances create the most serious protection challenges for UNHCR and the international community. Any measures to address the various issues emerging in mass influx situations by member states must not be at the expense of the refugees' individual human rights.

NGOs wish to emphasise that the 1951 Convention applies to all refugees, whether they arrive on a territory in mass numbers or not. Prima facie recognition in this regard is an alternative method to individual status determination. Both methods, however, equally ensure the full application of the Convention. It is important to keep in mind that in both methods, refugee recognition is declarative, which means that recognition does not make someone a refugee: it simply acknowledges a pre-existing status. One becomes a refugee as soon as one satisfies the criteria enshrined in the Convention.

In this respect, NGOs have some questions with regards to the text of paragraph 6 of the paper (EC/54/SC/CRP.11), which risks confusing prima facie recognition and temporary protection. It also seems to suggest a double standard between countries that have well-developed systems for individual status determination and those that do not (yet) have such systems in place.

We hope reference will be made in the final study to the practical aspects of the protection response in mass influxes. Admittedly, the overall humanitarian response in emergency situations (and particularly in mass influxes) is still largely focused on the delivery of assistance. While much needed, this assistance must be underpinned by, or incorporate, a protection framework. The operationalisation of protection by UNHCR and other humanitarian agencies must be a key priority. This operationalisation should include the automatic deployment of adequate numbers of protection officers and the application of practical protection tools.

NGOs recognise that political will, adequate capacity, and international solidarity are all crucial elements in addressing effectively situations of mass influx and in guaranteeing, not lowering, existing standards. The measures of protection, as laid out in EXCOM Conclusion 22, form the first crucial elements that must be taken into account in any further discussions or debates related to the need for an additional protocol. In addition, we would like to highlight, inter alia, the following considerations also to be taken into account:

• In situations where the refugee-producing crisis proves not to be of a "reasonably short duration," refugees must be ensured access to procedural and legal safeguards to secure a permanent status.
• With regards to exclusion in group-recognition situations, adequate procedural safeguards should be in place and the right of each individual to appeal such a determination must be both recognised and made effective.
• It is vital that any transfer or evacuation schemes be on a voluntary basis. The consent to evacuate must be an informed one, based inter alia on a knowledge of the destination country, information of the planned conditions of stay there, the absence of pressure to accept evacuation, the principle of family unity, and information on the length of stay or any requirements to return.

Finally, we would like to turn to the notion of international solidarity and the need for states to engage in international cooperation to share responsibilities. NGOs welcome initiatives designed to relieve "undue burdens," which often arise in the context of the mass influx of refugee populations. The obligation of states to respect and protect the human rights of refugees on their territory must never be subsumed to the "varied state interests" noted in UNHCR's summary findings. "State responsibility" speaks to the obligations of states towards refugees on their territory or under their jurisdiction. This responsibility is distinct from "responsibility- and burden- sharing," which is primarily about states' obligations to cooperate with one another in order to find permanent solutions to the problems of refugees. Both responsibilities, however, must be fulfilled in order to ensure an effective refugee protection regime.

Thank you, Mr. Chairman.