BACKGROUND NOTE
OF THE UNHCR


On December 11-12 1978, thirty-eight countries gathered in Geneva to discuss the Indochinese Refugee crisis. The same day the United Nations General Assembly’s Third Committee passed a resolution urging countries “to continue to facilitate the work of the High Commissioner,” Poul Hartling sent a background note to the countries participating to the consultation meeting. Three points emerge from his text. First, the number of resettlement places was a lot lower than the arrivals. Second, the number of arrivals was not stable but had accelerated in the last months. Lastly, the fact that boats had difficulties find a port of disembarkation generated a new crisis. Now passing boats ignored refugees drifting on the high seas.


Consultative Meeting with Interested Governments on Refugees and Displaced Persons in South East Asia (Geneva, 11-12 December 1978),
Background Note, 29 November 1978

INTRODUCTION 

1. At its twenty-ninth session, in October 1978, the Executive Committee of the High Commissioner’s Programme welcomed the High Commissioner’s intention to call consultations with all interested governments on the problem of refugees in South East Asia. This Note has been prepared for the consideration of participants in the consultations that are to be held in Geneva on 11–12 December 1978.

PURPOSE OF THE MEETING 

2. In considering the need for consultations, the Executive Committee recorded its concern that the number of refugees in South East Asia was growing and recognized the difficulties encountered by the countries in the region, particularly since current resettlement programmes did not provide sufficient places for the numbers involved. The Committee felt that there was need to bring to the attention of the international community the increasing magnitude of the problem and urged all concerned to give full consideration to means of resolving the problem by giving appropriate assistance to programmes in countries of the region, and by intensifying action to promote resettlement of the refugees in a wider range of countries. 

3. Further, the Executive Committee expressed deep concern as to the fate of refugees in distress on the high seas and adopted a decision recommending a series of specific steps to be taken in this regard. 

4. The High Commissioner wishes to express his deep gratitude to all who have support his efforts: the countries of the region and of resettlement, those who have contributed financially and many intergovernmental and non-governmental organizations. While it is evident that the problem of refugees and displaced persons in South East Asia derives from the social and political evolution of the region, the work of the High Commissioner must remain entirely humanitarian and non-political. He is, therefore, heartened by the appreciated and understanding of his role as expressed by all concerned. It is his firm view, however, that a major and co-ordinated response to the problem is required of the international community. To be successful, the response must recognize the inter-relationships in the region as a whole and their external dimensions. It is imperative that the refugees and displaced persons be helped wherever they are, in all parts of the region, not merely selectively. Failing this, there will be additional reasons for problems to spill over frontiers. 

5. Since the Executive Committee met, it is evident that the difficulties have heightened, not eased, as the number of refugees and displaced persons has increased. This is true both in respect of those who have crossed land frontiers, and those who have taken to sea. 

6. It has always been the purpose of UNHCR, which now needs to be reiterated, that humane and durable solutions should be found for refugee problems as rapidly as possible. Traditionally, these solutions have required either voluntary repatriation, the self-sufficiency of refugees in countries of first asylum, resettlement in third countries, or a combination of these measures. Whatever the solution, however, the starting point has of necessity been the granting of at least temporary asylum. 

7. The present predicament of the refugees and displaced persons in South East Asia derives from the fact that conditions for promoting the traditional solutions have not yet been fully met. First, except for a limited number, voluntary repatriation has not provided the answer. Second, the development of self-sufficiency has been hindered by the scale and complexity of the problem and the continuing influx. Third, resettlement elsewhere – the only solution which could quickly and dramatically ease the difficulties in countries of first asylum – has not kept pace with the growing dimensions of the problem. Taken together these circumstances have affected asylum practice. 

8. It is the High Commissioner’s view that the forthcoming consultations must address these problems so that solutions can be devised and action taken on the widest possible basis and with the widest understanding. 

9. It must be stressed that, ultimately, it is in the power of governments, not of UNHCR, to create the fundamental conditions on which existing problems can be resolved, and fresh problems avoided. The efforts of UNHCR cannot substitute for the will and determination of governments to achieve durable solutions. Indeed, the choice and achievement of such solutions does not, in the final analysis, depend on UNHCR alone, or on the individual refugee, but on the decisions of governments. It is for these reasons that the present consultations are most timely. 

ASYLUM

10. It is obvious that unless at least temporary asylum is granted, not only is UNHCR unable to promote durable solutions but tragic loss of life can occur. 

11. Various important principles relating to asylum have found expressions in international instruments, notably the Universal Declaration of Human Rights of 1948, the Final Act of the Conference of Plenipotentiaries which adopted the 1951 Convention relating to the Status of Refugees, the Convention itself and the 1967 Protocol on this subject, the United Nations Declaration on Territorial Asylum of 1967 and various resolutions of the United Nations General Assembly. Some of these principles have, additionally, been incorporated in resolutions and recommendations adopted within the framework of regional organizations. These principles include the right to seek and enjoy asylum; the fundamental principle of non-refoulement; the principle that the granting of asylum is a peaceful and humanitarian act and that as such it cannot be regarded as unfriendly by any other State; and the particularly relevant principle that where the granting of asylum gives rise to difficulty, other States should consider, in a spirit of international solidarity, appropriate measures to lighten the burden on the State concerned. 

12. There is, therefore, a strong humanitarian tradition in favour of admitting asylum seekers to the territory of States where asylum is sought. Indeed, it is in this spirit that the governments of States in South East Asia have generally adopted liberal practices as regards the granting of at least temporary asylum. The attitude of States in the region is clearly affected by a variety of important factors including the prospects for durable solutions outside their territories. The question of temporary asylum cannot, therefore, be considered in isolation. However, it is especially important, in view of the increasing numbers seeking asylum, that humanitarian principles should be uniformly followed and that practice should be in harmony.

THE CASELOAD AND PROBLEMS

13. These consultations are to address the problems of three groups of concern to UNHCR: first, the some 195,000 persons who arrived overland in Thailand since early summer 1975, of whom over 130,000 remain in that country; second, the some 150,000 persons who arrived overland in Vietnam; and third, the some 85,000 who have taken to the high seas since mid-1975 of whom over 40,000 await durable solutions. In this Note the first and second groups are referred to as “land cases” and the third as “boat cases.” Details of their problems are contained in the High Commissioner’s reports to the Executive Committee and the General Assembly. A summary of the situation is given below. (Statistical information as of 30 November 1978 will be provided at the consultations.)

LAND CASES: THAILAND

14. The first agreement between the Government of Thailand and UNHCR for material assistance was concluded in July 1975. There were then approximately 40,000 recently arrived Indo-Chinese in Thailand. The subsequent developments may be seen from this table.

Land Cases 1975 1976 1977 1978 to 31st of Oct. Cumulative Total
Arrivals
77,169
32,931
31,214
51,378
192,692
Departures
12,755
22,859
10,936
17,271
63,821
Remaining caseload
64,414
74,486
94,764
128,871

Of the 128,871 remaining persons who arrived by land, 112,962 came from the Lao People’s Democratic Republic, 14,765 from Democratic Kampuchea and 1,144 from Vietnam. (Details of the additional 11,834 persons who arrived by sea, of whom 2,541 remain, are given in paragraph 19). 

15. The continuing influx has placed a severe strain on the authorities. Two centres alone now contain over 70,000 persons (Nong Khai and Ubon Ratchatani). Durable solutions have fallen far short of the needs of the situation. Voluntary repatriation has not provided the answer except for a few. In an important development the Thai Government has recently agreed to elaborate a pilot-project for a self-sufficiency programme to benefit both the displaced persons and the Thai rural population. Hitherto only resettlement in third countries has provided a durable solution. The principal countries of resettlement for land cases are shown in the following table: 

Country of Resettlement 1975/76 1977 1978 to 31st of Oct. Total Departures
Australia
572
487
1,672
2,731
Austria
132
14
1
147
Belgium
18
141
1
147
Canada
503
21
106
630
France
13,907
9,374
6,056
29,337
Germany, Fed. Rep. of
208
164
140
512
Malaysia
1,400
178
1,578
New Zealand
2
3
5
Norway
87
3
90
Switzerland
5
1
1
7
United Kingdom
23
23
37
83
United States
19.445
507
8,449
28,401
Six other countries (each under 100 total)
71
23
10
104
Total Land Case Departures
36,373
10,936
16,512
63,821

LAND CASES: VIETNAM

16. Since 1975 a number of refugees and displaced persons have arrived in Vietnam from Democratic Kampuchea. In April 1978 the Government of Vietnam requested the High Commissioner’s assistance in providing humanitarian aid. The Vietnamese authorities estimated that by mid-1978, 150,000 refugees and displaced persons had arrived from Democratic Kampuchea. The majority are living in eight southern provinces, while several thousands are living in Ho Chi Minh City. A substantial proportion of those who have arrived are children, while the rest mainly comprise women and the elderly. Most of those who are not in the provinces are of rural background, whereas those in Ho Chi Minh City are former city-dwellers. The Government of Vietnam has also informed UNHCR of a large number of former Vietnamese residents of Democratic Kampuchea who have now arrived in Vietnam and of an extensive movement of the local population away from the border. 

17. Emergency relief, including World Food Programme food supplies, is being provided as a first step in a programme designed to help the majority of refugees to become self-supporting through rural settlement in the 1979 phase of the programme. Plans foresee the establishment of 10 settlements in eight provides. Whilst food aid will remain an important component of the scheme, assistance will be required for agriculture and fisheries, health and education. The Government has already provided land for cultivation. Apart from initial relief assistance, plans for the refugees in Ho Chi Minh City foresee improvements in lodging, education and other facilities as well as projects to promote self-sufficiency, despite the high level of unemployment in the city. 

18. Among the refugees of urban background, a certain number have expressed the wish to be resettled in other countries. Movement is already taking place, notably to France. Further details are being compiled of those who might be eligible for resettlement on the basis of close family or other ties. 

BOAT CASES

19. The problem is illustrated by the following table, which does not reflect the arrival of over 10,000 persons in November, who are presently being registered by UNHCR

Arrivals in Aug. 1975/76 1977 1978 to 31st of Oct. Cumulative Total Not accepted at 31 Oct.
Australia
111
861
663
1.635
Hong Kong
196
1,007
4,956
6,159
3,546
Indonesia
244
679
2,458
3,381
1,623
Japan
348
851
678
1,877
636
Malaysia
1,157
5,817
33,172
40,146
23,532
Philippines
712
1,153
2,443
4,308
2,130
Singapore
121
308
1,611
2,040
847
Thailand
2,699
4,536
4,599
11,834
1,684
17 other countries (each under 350 total)
37
452
853
1,342
205
Total Arrivals
5,625
15,664
51,433
72,722
34,203
Departures
2,332
9,571
22,952
34,855
Remaining
3,293
9,386
37,867 (of whom 3,664 accepted)

20. In 1978, and notably since September, the monthly rate of arrivals has increased markedly:

1977 1978
January
200
1,925
February
623
1,565
March
664
2,257
April
650
5,012
May
1,817
5,569
June
2,038
4,929
July
1,267
6,232
August
1,048
2,829
September
1,927
8,591
October
2,717
12,524
November
1,704
December
1,009

This increase has placed a severe strain on accommodation and relief arrangements particularly in Malaysia where 9,994 of the total of 12,524 arrivals in October disembarked, an influx which was exceeded in November. 

21. The principal countries of resettlement for boat cases are shown in the following table:

Country of Resettlement 1975/76 1977 1978 to 31st of Oct. Total Departures
Australia
2,414
6,866
9,280
925
Canada
330
520
850
280
France
1,532
829
2,361
97
Germany, Fed. Rep. of
166
71
237
3
New Zealand
414
7
421
Norway
139
252
391
30
Switzerland
119
141
260
18
United Kingdom
88
141
260
18
United States
6,389
12,881
19,270
2,308
10 other countries (each under 100 total) and other solutions
312
897
1,209
3
Total Boat Case Departures
11,903
22,952
34,855
3,664

22. The issues raised by the boat cases are complex and certain aspects required new approaches and solutions. The problem of boat cases is, self-evidently, of international concern. Whatever their motives for leaving, once at sea the circumstances of all such persons have presented a grave humanitarian problem which requires an international solution. Boat cases need special measures to accord them protection. In addition to the problem of rescue at sea, which is examined in this Note, three stages are involved: securing permission to land, interim material assistance and finally, a durable solution.

23. Many countries make permission to land conditional on the expectation, and in some cases, the guarantee of resettlement elsewhere, and may set a time or numerical limit on this permission. Both the first and last stages of the process thus involve the exercise by governments of sovereign prerogatives, which UNHCR can only – but must – seek to influence on humanitarian grounds. It is essential, therefore, that on the one hand the rates of departure provide a reasonable expectation that durable solutions can be achieved and, on the other, that the prior conditions set for disembarkation should indeed follow humanitarian practice, and at a minimum not lead to loss of life or otherwise place refugees in grave jeopardy. 

RESCUE AT SEA

24. Some 15 per cent of all boat-case arrivals have been rescued on the high seas by passing vessels. The craft used by the boat cases are often over-loaded and more suited to coastal waters. Boat cases have also reported that passing vessels have ignored distress signals. Regrettably, therefore, boat cases have been lost at sea, not only when rescue was not at hand, but also after disregard of distress signals. 

25. The rendering of assistance to persons at sea whose lives are in danger has long been recognized as a legal obligation incumbent upon all ships’ masters. The International Convention for the Safety of Life at Sea, 1960, which had been ratified/accepted to by 98 States, spells out the mandatory nature of rescue at sea and defined the role of masters of ships from whom assistance is requested. This duty is reinforced by the obligation imposed on Contracting States by Article 1 of the Convention to adopt national legislative or administrative measures to ensure the effective implementation of its provisions. The Convention, additionally, imposes an obligation upon Contracting Governments to ensure search for and rescue of persons in distress at sea around their coastline. 

26. The Law regarding rescue at sea is thus clear and unambiguous. However, three factors give rise to special difficulties when considering boat cases. The first is the problem of disembarking rescued boat cases; the second the financial consequences of the rescue; and the third, the nature of the distress. 

27. In the circumstances for which the international law was framed, persons rescued at sea are disembarked without difficulty at the next, or often the most suitable, port of call. A state is under an obligation to make arrangements for the repatriation of its nationals rescued at sea. This does not apply to the boat cases, who seek asylum. As a result, the authorities of the next port of call, if they are prepared to permit landing at all, generally require a guarantee, both for resettlement in another country and for care and maintenance pending resettlement. There have also been instances in which a state has not permitted disembarkation on its territory even from vessels flying its flag. 

28. In the majority of cases flag states or states of ownership of rescuing ships are ready to provide resettlement guarantees, whilst interim care and maintenance is assured by UNHCR. In certain cases, however, the flag or ownership state may be either unwilling to provide a resettlement guarantee or unable to do so quickly for practical reasons. 

29. Thus UNHCR is frequently faced with the necessity of finding a country other than the flag/ownership state which would be ready to guarantee acceptance of a specific person or group of boat cases. This naturally necessitates negotiations with potential resettlement countries, to whom individual cases have to be submitted for approval.

30. An important related consideration is safety after rescue. The rescuing vessel may not have sufficient live-saving equipment for all those rescued. If disembarkation at the first port of call is not possible, masters may then be forced – or alternatively refuse – to continue their voyage in breach of national maritime safety regulations. 

31. As a result of the delay in obtaining disembarkation permission, or sometimes even refusal of permission to land altogether, the rescue ship can incur heavy financial penalties for the time over-stayed at port and consequent loss of business. 

32. International law relating to rescue at sea assumes that the distress is real; many countries provide severe penalties for false distress calls. However, just as boat cases have reported that genuine distress signals have been ignored, so they and masters have also reported that distress signals were made by craft in circumstances in which the craft making the distress signal was either not in danger, or only in danger as a result of action taken on sighting a potential rescuer. The possibility that the craft is not in distress, for example if in calm weather it was first sighted exhibiting no distress signals and making way normally, may thus be a factor influencing the master’s decision. 

33. None of these factors can condone failure to comply with the law regarding rescue at sea. However, the dilemma faced by a master in such situations is very real. The Executive Committee at its twenty-ninth session commended the masters and owners of ships that had rescued refugees and the states that had offered them temporary or permanent asylum, and decided on measures designed to encourage the rescue of boat cases. The decision inter alia called on states to instruct ships flying their flag to rescue refugees, coastal states to provide at least temporary asylum and all states to apply special and accelerated procedures to provide durable solutions for refugees rescued at sea. Swift implementation of this decision would help to save life. 

UNHCR ASSISTANCE

34. The arrival of land and boat cases has necessitated a major expansion of UNHCR activities in the region. In early 1975 UNHCR had 11 professional staff assigned to 3 countries in the region. UNHCR presently has over 30 professional staff in 9 countries. 

35. Financial assistance has been provided as follows, figures include programme support: 

Thailand Vietnam Other Countries Total
1975-76
10,439,242.71
7,559,408.53
17,998,651.24
1977
9,483,736.24
4,920,526.34
14,404,262.58
1978 (as of 30/11/78)
32,838,744.95
500,000
25,906,531.87
59,245,276.82
Total (US$)
32,838,744.95
500,000
25,906,531.87
59,245,276.82

36. The following are the requirements on the basis of the present caseload and in addition to food aid already provided by the World Food Programme under its emergency procedures to Thailand and Vietnam. 

1 Jan. 1978-28 Feb. 1979
Thailand
Basic need
12,000,000
Resettlement
4,400,000
Sub-total
16,400,000
Vietnam to 31 Dec. 1978 only
Basic need and local integration
750,000
Content
Resettlement
Sub-total
750,000
Other countries and areas
Basic needs
19,200,000
Resettlement
1,000,000
Sub-total
20,200,000
Programme support
2,104,000
Total US$
39,454,000

37. Details of the requirements for areas other than Thailand and Vietnam are: 

1 Jan. 1978 - 28 Feb. 1979
Hong Kong
5,500,000
Indonesia
1,600,000
Japan
1,310,000
Malaysia
8,200,000
Philippines
600,000
Singapore
600,000
Others
700,000
Total basic needs
19,200,000

38. Contributions have been made available or conditionally pledged to UNHCR towards the US$ 39,454,000 revised target as follows:

Donor Government Amount pledged or contributed, or value (US Dollars)
Australia
1,500,242
Belgium
258,065
Canada
663,821
Cyprus
520
Denmark
748,223
Germany, Fed. Rep. of
1,502,483
Japan
7,734,234
Netherlands
669,843
Norway
775,194
Sweden
872,478
Switzerland
323,982
United Kingdom
2,920,601
United States
8,500,000
EEC (300 MT butteroil CIF)
429,000
Sub-total
26,897,586
Non-governmental organizations and others
191,966
Carried forward from 1977
2,483,105
Total at 30 Nov. 1978
29,572,657

39. The rapid increase in the caseload has necessitated successive upward revisions of earlier estimates of financial needs. Available funds have either been committed or are in the process of being committed. Some US$ 10 million is still required to meet the 1 Jan. 1978 – 28 Feb. 1979 revised target. It is already clear that the estimates for the remainder of 1979 as approved by the Executive Committee at the twenty-ninth session will need upward revision.These needs will be reviewed early in 1979. 

CONSIDERATIONS FOR FUTURE ACTION

40. From the foregoing, it will be seen that durable solutions must still be found for a large and growing number of refugees and displaced persons in South East Asia. Without major decisions and initiatives being taken by governments, those facing prolonged dependence on international relief are likely to increase. 

41. In these critical circumstances, governments might wish to determine the measures that should be taken in connexion with the following: 

(i). The immediate problem is to secure asylum, even if temporary, particularly for boat cases. As is clear, the practice of States in the region varies from country to country and, not infrequently, it is also related to the numbers arriving and the prospects for third country resettlement. There is need to establish, agree upon and implement uniform policies that are in keeping with international humanitarian principles. 

(ii). Given the fact that new arrivals have in large numbers been concentrated on a few areas in the region, the further question arises as to whether there can, as a temporary expedient, be a wider sharing of the refugee caseload in the region, pending processing for resettlement and the elaboration of durable solutions. This may be needed, particularly as present accommodation is severely over-crowded as a result of the increasing rate of arrivals. 

(iii). A major and swift increase in resettlement opportunities is urgently required. Equally, there is a need, recognized in the decision adopted by the Executive Committee at its twenty-ninth session, to promote the resettlement of refugees in a wider range of countries than hitherto. Ways and means of achieving this objective, which might benefit from the involvement of regional organizations, could be considered. 

(iv). The early announcement of numbers to be accepted by both existing and new resettlement countries is needed in order to allow the polling of arrangements and advance planning. Steps that can be taken to this end may be discussed. 

(v). More liberal and flexible resettlement criteria for both land and boat cases would allow due emphasis to be placed on humanitarian needs and on the refugee’s own choice. These would also allow both an optimum utilization of ht epool of numbers and the re-allocation of numbers to areas of greatest need. Existing criteria could advantageously be examined.

(vi). Certain governmental resettlement procedures rely on regional selection teams or even individual case referral to capitals. Present procedures, including the deployment of immigration staff, might be reviewed. 

(vii). Ways and means might be examined to draw more fully upon the special skills and expertise of non-governmental organizations. 

(viii). Where persons leave their countries in order to reunite with their families abroad, countries of origin and those where such family reunion would take place may wish to formulate appropriate bilateral or multilateral procedures if this has not been done. Humane in itself, this would provide an alternative and more practical means of reuniting families than presently available. In this connection, bilateral or multilateral arrangements resulting in more regular migration procedures might also be considered. 

(ix). Considerations relating to the stability of the region as a whole indicate a need for multilateral and bilateral efforts directed towards the improvement of economic conditions in the Indo-China peninsula. International assistance could help redress the devastation caused by war and successive national calamities and influence the decisions both of those who might wish to repatriate voluntarily and those who might otherwise consider leaving for economic reasons. 

(x). There is an evident need to develop self-sufficiency projects, and the pilot project being elaborated in Thailand is most welcome development. The social consequences of idleness and prolonged dependence on relief assistance are well known. As such projects are identified they should be considered for most generous financial backing from the international community. 

(xi). There is a need to increase the numbers of countries contributing financially to meet the requirements brought to the attention of UNHCR. Costs in the area are rising and governments may wish to consider making early budgetary provisions. 

CONSIDERATIONS FOR FUTURE ACTION

42. The Report of the High Commissioner was considered by the Third Committee of the General Assembly on 13–14 November 1978. The resolution, which was adopted by consensus, commended Governments “for the humanitarian spirit in which they have received refugees and for the generous manner in which they have contributed to alleviate suffering.” The resolution went on to urge Governments “to continue to co-operate closely with the High Commissioner in efforts to achieve the self-sufficiency and, where possible, the integration of refugees in countries of asylum, and to accept for resettlement, on the widest possible basis, refugees from countries of first asylum.” The resolution further urged Governments to facilitate the work of the High Commissioner by the “scrupulous observance of humanitarian principles with respect to the granting of asylum and the non-refoulement of refugees.”

43. The present consultations will have served an important purpose if they give practical expression to these imperatives. In limbo, awaiting durable solutions, the refugees and displaced persons of South East Asia required the urgent assistance of the international community. The measures to help them must be defined, in these consultations, with greater clarity, and then implemented with speed. 

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UNHCR/F11/2/39_391_39d. Consultation with interested Governments on refugees and displaced persons in South East Asia, Background Note, 29 November 1978.