Belarusian Journal of International Law and International Relations 2000 — N 5

The 50th Anniversary UNHCR Special Issue

Summaries


International Law

Statute of the Office of the United Nations High Commissioner for Refugees (only russian)

Foreword — Bohdan Nahajlo

Refugees in the Republic of Belarus — Ludmila Serikova

Migration Processes in the Republic of Belarus — Ludmila Shakhotko

Extra-Mandate Activity of the UNHCR: Promoting the Displaced Persons Protection — Ludmila Pavlova

The Cooperation Principle as the Fundamental Principle of the UNHCR Activity and Its Implementation in the Migration Policy of the Republic of Belarus — Larisa Vassilieva

Human Rights and Protection of Refugees — Yury Morgun

Documents and Materials

Convention Relating to the Status of Refugees (only russian)

Protocol Relating to the Status of Refugees (only russian)

Assessment Report of the CIS Conference Process (1996—2000) (only russian)

Report and Recommendations for Follow-up to the Regional Conference to Address the Problems of Refugees, Displaced Persons, Other Forms of Involuntary Displacement and Returnees in the Countries of the CIS and Relevant Neighboring States (only russian)


FULL ISSUE 


English Summaries


“Foreword” (Bohdan Nahajlo, Head of the UNHCR Liaison Office in Belarus)

This issue of the Belarusian Journal of International Law and International Relations is dedicated to the fiftieth anniversary of the founding of the United Nations High Commissioner for Refugees (UNHCR) and the adoption of the UN Convention on Refugees. This jubilee has a major global significance as demonstrated in the worldwide activities to mark this anniversary. And in Belarus, too, where fortunately there have been no major humanitarian crises and mass influxes of uprooted people of the sort that UNHCR has had to deal with elsewhere in emergency operations, the organisation’s impact has also been felt and made a difference. Thus, the 50th anniversary of UNHCR is also a time to take stock of what this organisation has meant for Belarus, a founding member of the UN, to celebrate achievements and to strengthen efforts to fill gaps and integrate fully into the international refugee protection system.

UNHCR’s presence in Belarus, as indeed in all of the countries that were formally part of the Soviet Union, was established only relatively recently. For various reasons, the USSR had remained outside the international refugee protection system and it was only with the opening up of this huge multinational entity to the outside world and its subsequent dissolution and replacement by the loose association calling itself the Commonwealth of Independent States (CIS) that the organisation began to play a role in this region. UNHCR’s archives reveal, though, that as early as August 1990, the Byelorussian SSR had formally requested UNHCR’s assistance "to mitigate the consequences of the Chernobyl nuclear power plant disaster". UNHCR was unable then and subsequently to help on this matter of such vital concern to Belarus because the issue of ecological migrants falls outside the organisation’s mandate.

As UNHCR began to develop a strategy for its involvement in the post-Soviet region, an area that remained largely a terra incognita and a non-traditional environment for its operations, in the spring of 1992, UNHCR sent its first fact-finding mission to Belarus. Gradually, UNHCR’s policy for the newly emerged countries of the CIS took shape. It entailed a comprehensive effort to build up systematically the capacities of the Governments and nascent non-governmental organisations in the region to deal with issues related to forced displacement in accordance with international standards and with the aim of "preventive protection". As part of this overall approach. UNHCR opened its office in Belarus in the second half of 1995.

Situated at the geopolitical crossroads of Europe, Belarus’ territory is a major transit corridor for irregular migration movements from east to west. The country, which has a long open border with the Russian Federation in the east and north, and borders with Poland, Lithuania, Latvia and Ukraine in the west and south. Illegal migration across Belarus’ territory remains a major security preoccupation, the authorities estimating that up to 150,000 people are illegally present in the country at any one time. In this context, the primary role of the UNHCR Liaison Office in Belarus has been to assist the Belarusian authorities to establish a humane system for managing irregular migration flows with the emphasis on ensuring that the rights of asylum seekers and refugees are respected in compliance with international norms and standards.

With the exception of the International Organisation for Migration (IOM), UNHCR has been the only international agency concentrating on refugees and migration related issues in the country. It has contributed very directly and tangibly to the building of the country’s capacity to address these challenges. All the relevant Belarusian authorities have proved willing to co-operate closely with UNHCR. Hence, good working relations have been established with, among others, the Committee on Migration under the Ministry of Labour, the State Border Troops Committee, the Ministries of the Interior and Justice, and regional executive bodies.

As a result of the fruitful cooperation between the Belarusian authorities and UNHCR, Belarus has managed to make significant headway in a relatively short space of time in developing an asylum system. It is to the credit of the Belarusian authorities that during the last few years, with the assistance and advice of UNHCR, they have managed to create a legal framework, particularly in the form of the 1995 Law on Refugees that was considerably (though not completely) improved by amendments in 1999, established a Migration Service with offices in the capital and regional centres, and have most recently concentrated on making the refugee status determination procedures operational country-wide. As a result, during the last two years, the recognized refugees has grown rapidly and by the end of 2000 was reaching 448. Many applications from asylum seekers registered with the Migration Service were pending.

There are, however, still a number of shortcomings in the amended national refugee law itself, as well as its implementation. These concern the formal grounds on which access of asylum seekers to the refugee status determination procedure is impeded (e. g. that asylum seekers have to submit their applications within 24 hoursin the case of illegal entry into Belarus). UNHCR has prepared its detailed comments and recommendations on the amended Refugee Law and in 2001 will be taking them up with the relevant authorities.

The lack of agreement with neighbouring states on what constitutes a safe third country, as well as readmission procedures, leave serious gaps. For instance, Belarus regards Russia as a safe country and automatically rejects applications from asylum seekers who have transited Russian territory. Many of the applications submitted to the Migration Services offices are therefore denied registration based on the safe country rule. This approach reflects the Governments’ preoccupation with combating illegal migration.

The persistence of the residual institution of the propiska, the permanent residence permit, also acts as an obstacle to the integration of recognised refugees. But at least the authorities have shown a willingness to work with UNHCR in finding ways around this problem and regional administrations have begun to accept their share of responsibility in providing places for recognised refugees to live and integrate.

At the end of 2000, two other major questions also appeared to be nearing a successful resolution. UNHCR has constantly encouraged the Belarusian Government to adhere to the 1951 Refugee Convention and thereby reap the political benefits for what it is already doing in practice. At a landmark meeting in Geneva at the end of June 2000 between UNHCR’s High Commissioner Sadako Ogata and the Prime Minister of Belarus, Vladimir Yermoshin, the Belarusian Government pledged to speed up the process of accession. Towards the end of 2000, there were encouraging signs that the Government had cleared the way for the signing of the Convention and had submitted its recommendation to the President’s Administration for its endorsement.

Since 1996 UNHCR’s office in Minsk has also been seeking to conclude a Country Agreement with the Belarusian Government. After the Belarusian Prime Minister’s meeting with the High Commissioner negotiations on concluding the agreement were intensified and towards the end of 2000 it appeared that a breakthrough was in sight.

There is a feeling in Belarus that the country is not receiving sufficient credit for its role in controlling illegal migration as well as apprehension that it will be increasingly left to deal with this problem on its own.  UNHCR seeks to obtain proper international recognition of Belarus’ achievements in the migration and refugee related spheres and to create opportunities for enhanced external cooperation. It stimulates cross-border regional cooperation in these areas between Belarus and its neighbours. UNHCR has organised study visits abroad by Belarusian officials and cross-border meetings of both officials and NGOs.

UNHCR has also encouraged the Belarusian authorities to participate actively in the follow-up to the 1996 Geneva Conference on forced migration issues in the Commonwealth of Independent States, which was organised by UNHCR, the International Organisation for Migration and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe, and to implement the Programme of Action that was jointly adopted at that multilateral forum.

As can be seen, as part of its global task to promote the establishment of a coherent international asylum system, UNHCR has also been active in Belarus. During her meeting Prime Minister Yermoshin, the High Commissioner commended the Belarusian Government for the considerable progress it has made in a relatively short time and in difficult economic conditions to establish a functioning asylum system on its territory that is in compliance with international norms. UNHCR is proud to continue playing its role in contributing to this effort that serves the needs both of Belarus and humanity as a whole.


"Refugees in the Republic of Belarus" (Ludmila Serikova)

General migration of the population on the whole of the post-soviet territory formed a background for the problem of refugees which the Republic of Belarus came up against in the early 90s. The first years of the emergence of the state of Belarus witnessed the country receiving on average about 10,000 forced migrants a year. The expanding scale and forms of population migration required establishing of a system of state regulation of migration processes. The state migration service was established in 1992 and developing of migration legislation started. The law of the Republic of Belarus "On Refugees", adopted in 1995, began to be partially enforced in  1997 and came into full force in 1998.

June 1999 saw coming into force of the Law "On Refugees" in its new wording. As a result of cooperation with the UNHCR and active participation of Belarus in the Geneva Conference process on migration problems of the CIS, the state policy relating to refugees is based on the norms and principles of international law. The definition of the concept of "the refugee" fully corresponds to the same concept contained in the 1952 Convention relating to the Status of Refugees. According to national legislation social and economic rights of refugees are equal to those of the Republic of Belarus citizens.

As of November1, 2000 the Republic of Belarus has recognized the status of refugees for 422 foreigners, including 330 persons form Afghanistan, 13 — from Ethiopia, 35 from Georgia, 17 — from Tajikistan, 14 — from Azerbaijan, 4 — from Iran and one from each country of India, Iraq, Liberia and Rwanda. Structurally, there are 37 % recognized refugee women and 63 % — men, about 60 % of refugees are able-bodied persons, 33 % are children under 16 years of age and only 7 % are over the retirement age. One-third of the refugees are college graduates or have secondary vocational education and 28 % have secondary education, which is the evidence of rich human resource presented by foreigners recognized as refugees in the Republic of Belarus. Their sufficiently high labour potential could contribute to the development of our country.

In Belarus, like in the neighbouring countries, forced migration is inextricably connected with illegal migration. Foreigners—illegal migrants to Belarus often pretend to be refugees to legalise their position. For the West our state serves as a kind of barrier and it has to bear extra expenses to contain flows of illegal migrants trying to get to Western Europe. The Republic of Belarus is entitled to expect adequate international assistance in solving the problems of migration, because the way of regulation of migration processes in our state would determine migration stability in Europe.

The present stage of migration processes management makes it the priority for the state to provide for the integration of refugees, to provide the conditions for their active participation in the life of society. This is the focus of the activities both of the state bodies and the non-government sector with the UNHCR's support. Further perfecting of legislation on refugees lies ahead, with the Republic of Belarus being envisaged to join the 1951 UN Convention relating to the Status of Refugees and the 1967 Protocol in near future. The progress the UNHCR Office in Belarus and the state bodies have made together permits to hope for further cooperation and attracting international assistance to solve the refugees' problems.


"Migration Processes in the Republic of Belarus" (Ludmila Shakhotko)

The late 1980s—the early 1990s saw cardinal changes in the volume, intensity and direction of migration flows in the Republic of Belarus. The situation was mainly affected by the collapse of the Soviet Union, the restructuring of economic and political life in the Republic and by the consequences of the Chernobyl disaster in 1986.

The article describes internal and international migration in the Republic of Belarus, exemplifying in figures such aspects as: ecological migration, migration exchange with the CIS countries and the Baltic states, repatriation of ethnic Belarusians, emigration beyond the borders of Belarus and the CIS, illegal migration, international labour migration and intellectual emigration. It also analyses future migration trends.


"Extra-Mandate Activity of the UNHCR: Promoting the Displaced Persons Protection" (Ludmila Pavlova)

The article describes the UNHCR’s extra-mandate activity concerning one category of forced migrants—displaced persons. The author shows that the institution of displaced persons has under-gone a considerable evolution. Whereas during World War II and in the period immediately following it, "displaced persons" meant mainly external migrants—people deported by the fascist authorities; beginning with the 60s—70s this term principally denotes people moved within a country as a result of ethnic conflicts and ecological disasters. As the citizens of that country they did not need legal protection; that is why international assistance to these persons assumed emergency character. The UNHCR, talking into account their specific status and driven by humanist considerations, began to apply special forms of rendering assistance to such persons: 1) promoting integration into the socio-economic system of the state of citizenship because with the absence of economic and political stability this state could not guarantee them protection; 2) assistance only with the consent, constant consultations and coordination of its activities with the authorities of this state.

The article explores the particulars of the UNHCR rendering assistance to internally displaced people at the example of the principles and methods used by the UNHCR in the CIS countries. As the main method of rendering help to forced migrants in the CIS countries the UNHCR chose holding a regional conference addressing the issues of refugees, internally displaced persons and other types of forced migration of population. The article describes the stages of preparation and organization of the conference, analyses the content of the Action Programme and the Declaration on the Principles adopted by the conference with the special focus on the actions recommended in the Programme regarding persons moved within the country. The author draws a conclusion about the UNHCR's extra-mandate activities being multifunctional and flexible, with specific methods and forms of assistance to forced migrants applied depending on the particular situation in the country of asylum.


"The Cooperation Principle as the Fundamental Principle of the UNHCR Activity and Its Implementation in the Migration Policy of the Republic of Belarus" (Larisa Vassilieva)

The article considers the issues pertaining to cooperation and interaction between the UNHCR, the state bodies of the Republic of Belarus and the NGOs on the problems of refugees.

The author discusses the content of the concept of "integration" and proposes specific actions within the framework of joint activities of the UNHCR, the Committee on Migration at the Ministry of Labour of the Republic of Belarus, bodies of internal affairs and the NGOs. The process of interaction demonstrates common fundamental approaches such as humanism, confidentiality, promptness and correlation.

The article identifies the main factors determining the nature of the interaction of the law-enforcing bodies: protection of refugees from overall legislation (in certain cases) and treating them according to the international standards adopted for this category of migrants.

Based on the above, the article suggests the following:

a) to set apart the work with refugees as a separate kind of administrative activity;

b) to provide for the corresponding training for the work in this field of law enforcement. Some variants of content for training activities are suggested.

There is an objective necessity of an in-depth study of criminological aspects of illegal migration on the territory of the Republic of Belarus. In this connection some open forms of joint activity are suggested in order to receive the necessary assistance from NGOs.

While analysing regional and international experience in harnessing the NGOs’ potential in solving the problems of asylum-seekers, the author stresses the important part NGOs play in implementing integration programmes and draws attention to the requisite conditions of such activity (empowering NGOs with state functions, providing subsidies etc.). With the factor of ethnic distance taken into account, the paper determines the priorities mentioned above — multi-vector information support of the refugees’ stay on the territory of our country and rendering assistance in psychological integration.


"Human Rights and Protection of Refugees" (Yury Morgun)

This article is dedicated to the blessed memory of the UNHCR’s officials — Samson Aregahegn (Ethiopia), Carlos Caceres (USA) and Pero Simundza (Croatia), who tragically perished in Atambua (East Timor), while carrying our their duties.

The article aims, concisely but comprehensively, to present to the readers — primarily those, who have to deal with the solution of various aspects of refugees' problem, implement measures on their protection in course of their official or public service — the principles and provisions of international law in the realm of human rights and the methods of their application to complement and promote activities on protecting refugees' rights and interests.

The article consists 9 sections: 1) refugees' rights; 2) violations of refugees' rights; 3) UNHCR; 4) UNHCR and human rights; 5) basic human rights; 6) main treaties on human rights; 7) UN bodies on human rights; 8) human rights restrictions; 9) monitoring treaty and commitments compliance. Every section presents and analyses the corresponding theme. As a whole the sections constitute a single logical chain called upon to demonstrate the efficiency of application of principles and provisions of international law on human rights in other to promote activities on protection of refugees and asylum-seekers.


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