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Doc. 8427
31 May 1999
Temporary protection of persons forced to flee their country
Recommendation 1348 (1997)
Reply from the Committee of Ministers
adopted at the 670th meeting of the Ministers’ Deputies (18 May 1999)
The Committee of Ministers refers to its interim reply to Parliamentary Assembly Recommendation 1348 (1997) on the temporary protection of persons forced to flee their country (reproduced in Appendix I).
In particular, the Committee of Ministers recalls that, in that reply, it asked the ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) to “study in detail the various aspects of the Assembly's recommendation and its consequences for the protection of the persons concerned”, taking due account of the relevant conclusions of the Second Summit of Heads of State and Government as well as the work carried out by the UNHCR and the European Union.
The Committee of Ministers agreed to transmit to the Parliamentary Assembly the opinion given by the CAHAR at the present meeting (Appendix II) and asked the CAHAR to continue its work on this subject in order to establish minimum guarantees for the persons concerned in relation to those member States which apply or wish to apply temporary protection measures. The Committee of Ministers will duly inform the Parliamentary Assembly of the outcome of this work.
Appendix I
Parliamentary Assembly Recommendation 1348 (1997)
on temporary protection of persons
forced to flee their country
Interim reply adopted by the Deputies at their 641st meeting
(15 and 18 September 1998, item 10.6)
The Committee of Ministers has carefully examined Recommendation 1348 (1997) of the Parliamentary Assembly on the temporary protection of persons forced to flee their country and wishes to give the following interim reply.
The protection of persons who have been forced to flee their country for reasons not necessarily covered by the 1951 Convention Relating to the Status of Refugees has, indeed, as paragraph 8 of the Recommendation of the Assembly considers, become the focus of attention.
The issues raised by paragraphs 9.i. to 9.iv. of the Recommendation of the Assembly are complex.
Before adopting a decision on the possible drafting of guiding principles in the field of temporary protection, the Committee of Ministers has asked the competent Committee of experts to study in detail the various aspects of the Assembly’s Recommendation and its consequences for the protection of the persons concerned. In this context, the experts are also invited to take due account of the relevant conclusions of the Second Summit of Heads of State and Government of the Council of Europe as well as the work carried out by the UNHCR and the European Union (see paragraph 9.i).
A consultation mechanism for the governments of receiving countries, in case of a risk of a massive influx of persons, has been negotiated intensively since the beginning of the crisis in some of the countries of the former Yugoslavia. A series of informal meetings on temporary protection were held under the auspices of the UNHCR and detailed discussions were also held on this subject at recent meetings of the Executive Committee (EXCOM) of the UNHCR's Programme (see paragraph 9.ii).
Most of the proposals listed under paragraphs 9.iv.a. to 9.iv.l. will be subject to detailed discussions in the framework of the CAHAR in order to see whether, and on which of these questions, it would be possible to come to joint conclusions amongst member States in the field of temporary protection.
After having received the opinion of the CAHAR, the Committee of Ministers will inform the Assembly about the measures taken in this respect.
Appendix II
Opinion by the CAHAR for the Committee of Ministers
concerning Parliamentary Assembly Recommendation 1348 (1997)
on temporary protection of persons forced to flee their country
General considerations
1. The CAHAR, in accordance with the decision at the 641st meeting of the Committee of Ministers, studied in detail the various aspects of the Assembly’s Recommendation and its consequences for the protection of the persons concerned, taking due account of the relevant conclusions of the Second Summit of Heads of State and Government of the Council of Europe, the work carried out by the UNHCR as well as by the European Union and arrived at the following opinion:
2. For some member States, temporary protection is a practical way, when individual examination of requests for protection is not possible, of dealing with cases of sudden and massive influx of persons from one country or region who are in temporary need of international protection, with a perspective of safe and dignified return. It is an exceptional measure, limited in time, and its application is without prejudice to international instruments, if any, applicable between member States.
3. Temporary protection complements the protection regime as enshrined in the 1951 Convention and its 1967 Protocol relating to the Status of Refugees. Temporary protected status is to be granted without prejudice to refugee status under the 1951 Convention.
Remarks concerning aspects of temporary protection as considered by the Assembly in paragraph 9.iv of its Recommendation:
4. Paragraph 9.iv.a.: Admission to the territory for beneficiaries is an important aspect of temporary protection, there might be a possibility to come to joint conclusions on this question by member States.
5. Paragraph 9.iv.b.: Under the specific circumstances of the Council of Europe, no ‘central’ decision-making structure is proposed as to the establishment of temporary protection regimes in relation to any particular group of persons. Any member State, however, would maintain its right to raise such an issue for consultation within the Committee of Ministers. The opinion of the UNHCR, when establishing, reviewing and phasing out a temporary protection regime by national authorities, should be sought and taken into account. There might be a possibility to come to joint conclusions on this question by member States.
6. Paragraph 9.iv.c. and h.: Respect for the principles of non-refoulement as well as the prohibition of torture or inhuman or degrading treatment or punishment are not disputed. The delayed examination of asylum requests contains difficulties as far as the length of suspension of such examination is concerned.
7. Paragraph 9.iv.d., e., f., g. and j.: The extent of entitlements concerning employment, education, family reunion and economic and social rights poses potential difficulties for agreeing on joint conclusions. Nevertheless, further discussion might take place in order to develop joint conclusions on these entitlements. The corresponding provisions of the 1951 Convention are recalled as one possible basis for such a discussion, partly because beneficiaries of temporary protection may include Convention refugees who have clearly established entitlements.
8. Paragraph 9.iv.i. and k.: Return to the country of origin when conditions allow is a key element of the concept of temporary protection. Voluntary return is the preferred option. In other cases, States should also take into consideration, when deciding about the return of such persons, compelling reasons some of them may have for not to be returned. Vulnerable groups need special attention and treatment. There might be a possibility to come to joint conclusions on these questions by member States.
9. Paragraph 9.iv.l.: The expeditious implementation of various elements of temporary protection is a task for those member States which apply this concept and experiences could be shared by governments at the competent expert committee of the Council of Europe.
Other considerations:
10. The CAHAR also considered which situations in the country or region (within that country) of origin, which may not necessarily be covered by the refugee definition of the 1951 Convention, can force a large number of persons to flee who might be granted temporary protection in another country. There might be a possibility to come to joint conclusions on this question by member States.
11. Another question examined by the CAHAR was that of beneficiaries of temporary protection within which the exclusion clauses of the 1951 Convention were recalled. There might be a possibility to come to joint conclusions on this question by member States.
12. The duration of temporary protection was also examined by the CAHAR. This is linked to the possibility or impossibility of return and the delayed examination of asylum requests. There might be a possibility to come to joint conclusions on this question by member States.
13. The question of solidarity and burden-sharing was recalled in the context of temporary protection. This contains certain difficulties as far as « equitable distribution » (Assembly Recommendation paragraph 9.ii.) of persons and assistance to these persons are concerned.
14. The CAHAR also underlined the importance of intergovernmental co-operation both between different host countries and between host countries and countries of origin in the context of temporary stay and re-integration, respectively.
Conclusion:
15. Within the specific framework of the Council of Europe and in the light of the specific circumstances, it might be possible to come to joint conclusions by member States in several of the above mentioned questions of temporary protection. A future joint conclusion (recommendation) should establish certain minimum guarantees for the persons concerned in relation to those member States which apply or wish to apply temporary protection measures.