Working Group on the Declaration on a code of conduct concerning the human rights of refugees and asylum-seekers

(GT-TP)

1. This Note is prepared on the basis of a request by the first meeting (5 November 1998) of the Committee of Ministers’ Ad Hoc Working Group on the Declaration on a code of conduct concerning the human rights of refugees and asylum-seekers (GT-TP). The working group was established to analyse the draft declaration as presented in document CM(98)173 by the Greek Chairmanship and to make recommendations to the Deputies concerning the manner of taking it forward, if possible before the end of 1998.

2. The aim of this Note is to facilitate the discussion within the working group by providing brief background information on international developments in the field of temporary protection, including relevant activities within the Council of Europe. As far as the European Union is concerned, the Austrian Presidency was asked to provide the Secretariat with information which can be disseminated to all member States of the Council of Europe. Such information, once received, will be incorporated in this Note as a quotation.

3. The focus of this Note is restricted to temporary protection related activities and documents by the United Nations (UNGA, UNHCR), the European Union, the IGC (Inter-governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia) and the Council of Europe. The Note is by no means an exhaustive description of all discussions and positions on this subject, nor a description of any domestic regime of temporary protection. In comparison with the title of the document containing the Greek initiative, as well as the full name of the working group, this Note touches upon issues of temporary protection which corresponds more with the actual content of the initiative.

4. The 1951 Convention and its 1967 Protocol Relating to the Status of Refugees (Geneva Convention) are the cornerstones of the international system of protection for persons who are forced to flee their country and are therefore in need of international protection. Views differ on how flexible or restrictive the interpretation of the Geneva Convention’s definition of the refugee can or must be in national practice.

5. Some argue that the application of the Geneva Convention can easily cover situations of mass influx, with a simplified group determination procedure and a scrupulous implementation of the Convention’s cessation clauses (when circumstances in connection with which the persons have been recognised as refugees have ceased to exist, the Convention ceases to apply). Then repatriation of these former refugees could take place.

6. The arguments in favour of temporary protection are that the Geneva Convention requires individual status determination which, in case of a mass influx, is difficult and costly, that the Convention applies only for a small part of those persons who seek protection today and that national practice, at least in western countries, made it unusual if sometimes not impossible to withdraw refugee status from grantees, even if circumstances in the country of origin have changed substantially. These arguments led in Europe to the emergence of the concept of temporary protection linked closely with safe return. One should note here that, without prejudice to the applicability of human rights instruments to all human beings, temporary protection, unlike refugee protection, has no binding instrument of international law which would, among others, oblige host States to grant persons under temporary protection similar rights to those of recognised refugees (eg. family reunion, gainful employment, welfare, housing, public education).

7. On August 25, 1992, the United Nations High Commissioner for Refugees addressed the UN General Assembly, by presenting her Note on International Protection. The Note, in para. 20, reads: "…as a result of recent events involving the massive flows of refugees from the former Yugoslavia, the notion of temporary protection is advocated as a possible alternative to established asylum procedures." The Note states that temporary protection requires minimum standards of protection against discrimination, refoulement, expulsion, basic standards of humane treatment and fundamental human rights, in particular, family unity. Temporary protection in some parts of the world is connected with the concept of safe return.

8. A series of "Informal meetings on temporary protection" by representatives of interested governments and international organisations (including the Council of Europe Secretariat) led to those paragraphs of the 1994 Note on International Protection, drafted and submitted by the UNHCR to the General Assembly, which deal with temporary protection. The point of departure for the UNHCR position was the only existing multilateral intergovernmental document on a similar subject, Conclusion No 22 of the EXCOM (the Executive Committee of the Programme of the UNHCR), from 1981, on the protection of asylum seekers in situations of large-scale influx. The 1994 Note gave a definition of beneficiaries (para 47):

- persons who fled from areas affected by conflict and violence,

- persons exposed to human rights abuses, including ethnic or religious persecution,

- persons who fled for other reasons specific to their personal situation and in need of international protection.

The same Note also indicated basic elements of temporary protection (para 48):

- admission to safety in the country of refuge,

- respect for basic human rights in accordance with EXCOM Conclusion No. 22,

- protection against refoulement,

- repatriation when conditions in the country of origin allow, in safety and dignity.

The Note mentioned (para 54-55) that an international or regional declaration on temporary protection "could in the best cases provide an inspiration for national legislation". "Harmonised regional approaches, of which the European Union offers the strongest example, are perhaps the most promising option for strengthening protection".

9. The UNHCR on several occasions maintained that "international solidarity and burden-sharing" is an established principle and that beneficiaries of temporary protection have included both persons who clearly qualify for refugee status under the Geneva Convention and others who might not. There is a need therefore to implement the temporary protection regime without prejudice to the Geneva Convention and provide options for consideration of Convention status and conversion to that status, with all inherent rights and benefits.

Information concerning the relevant work in the European Union will be issued shortly in an addendum to this Note.

10. In August 1995, a "Report on temporary protection in States in Europe, North America and Australia" was published by the IGC. Beside the 15 country reports, a comparative analysis identified four common elements of temporary protection in those States: admission or extension to stay, non-refoulement, basic humanitarian standards and eventual return. According to the information received from a member State’s Government, there is no updated version of this report, nor any new comprehensive document available. Reports of the IGC are made for the use of participating States of the IGC and the Council of Europe has not been invited to take part in this process of consultations.

11. There are several recent and current initiatives in this field. Firstly, in the Final Declaration of the Second Summit, the Heads of State and Government did "stress the importance of a common and balanced approach, based on international solidarity, to questions relating to refugees and asylum seekers, and in this regard recall the obligation for the State of origin to readmit these persons to its territory, in accordance with international law". Secondly, also at the Second Summit, the Prime Minister of Norway stated that our aim should be to conclude a European Convention on refugees and asylum seekers.

12. Thirdly, the Parliamentary Assembly adopted Recommendation 1348 (1997) on the temporary protection of persons forced to flee their countries in which the Assembly asked the Committee of Ministers to adopt a recommendation establishing common guidelines for member States on the subject. The Committee of Ministers, in its recent reply to the Assembly, entrusted the CAHAR (Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons) "to see whether, and on which […] questions, it would be possible to come to joint conclusions amongst member States in the field of temporary protection". The CAHAR will also consider questions, if any, arising from the applicable provisions and case law of the European Convention on Human Rights. The experts of the CAHAR have also been invited to take due account of the work carried out by the UNHCR and the European Union. The Assembly, in its Recommendation, invited "the European Union to use the framework of the Council of Europe in co-operation with the UNHCR to co-ordinate its temporary protection activities on a pan-European scale".

13. The CAHAR held a preliminary discussion on 16 October 1998 on this question and established an open-ended working party to make proposals for the spring plenary session (24-26 March 1999). Tentatively, the delegations from Austria, Belgium, Germany, Italy, Lithuania, Switzerland, Turkey, Ukraine and the UNHCR expressed their interest in participating in the Working Party. The holding of meetings of this working party will be subject to the approval of the 1999 budget of the committee.

14. Fourthly, the Committee of Ministers has established the present ad hoc working group (GT-TP) to examine the Greek Chairmanship’s initiative which is known to members of the group.

15. The main and disputed issues within the concept of temporary protection are these:

- situations in the country of origin which justify a temporary protection regime;

- which (national or international) authority should establish such a regime;

- the scope of beneficiaries;

- admission to territory and authorisation to remain there;

- the duration of temporary protection;

- the treatment of vulnerable groups;

- the extent of entitlements concerning family reunion, employment, social security, housing, welfare benefits and education;

- voluntary return, safe return, integration or resettlement;

- the examination of asylum requests, submitted by persons benefiting from temporary protection;

- physical or technical-financial solidarity (or "burden-sharing") and the link between temporary protection and solidarity.

16. After a careful reading of the Greek initiative and those parts of Recommendation 1348 which are now under the scrutiny of the CAHAR, (on the basis of the mandate received from the Committee of Ministers), one can conclude that both documents address most of the pertinent issues of temporary protection as well as solidarity. A parallel work by the GT-TP and the experts in the CAHAR could mean a duplication of activities at political and expert levels, respectively.

17. The CAHAR’s role in this process is clear. It has also proved its ability to move expeditiously on difficult issues which some might consider highly political. As an illustration, the last three CAHAR plenaries produced three draft intergovernmental recommendations of which two have already been adopted by the Committee of Ministers (safe third country concept and the right to appeal by rejected asylum seekers) whereas a third (training for officials receiving asylum seekers at border points) is being submitted for adoption in December 1998. The CAHAR also adopted last October in an immediate procedure a draft reply for the Committee of Ministers on the Protocol to the Amsterdam Treaty. Beside temporary protection, the CAHAR has on its current agenda, among others, family reunion for refugees and other persons in need of protection as well as the return of rejected asylum seekers.

18. The GT-TP might wish to consider some options:

- recommending the Committee of Ministers to draft a document, be it a declaration or a recommendation, based on the whole Greek document or on some of its selected principles as pre-drafted by the GT-TP;

- recommending the Committee of Ministers to draft a document, based on those parts of the Greek document which do not coincide with Recommendation 1348 of the Assembly;

- recommending the Committee of Ministers, before taking further action, to wait for the opinion of the CAHAR "to see whether and on which questions (of Recommendation 1348) it would be possible to come to joint conclusions amongst member States". In this case CAHAR could be encouraged to try to formulate such an opinion during its forthcoming plenary session of March 1999;

- recommending the Committee of Ministers to refer the Greek document to the CAHAR. In this case, some questions such as financing through the Social Development Fund, reestablishment of security and order in the country of origin or invitations by the Chairman of the Committee of Ministers for member States to consult one another would still remain outside the competence of the CAHAR;

- recommending the Committee of Ministers to take no further action, with an explanatory note, why.