The Memorandum of Understanding (MOU) signed by the government of Vietnam, government of Cambodia and United Nations High Commissioner for Refugees (UNHCR) on

25 January 2005 on the repatriation of the Montagnard refugees from Cambodia once again reinforces the need for

appointment of a UN Special Rapporteur on the rights of refugees.

Since the collapse of the Berlin Wall, refugees' right to international protection has collapsed with the advent of “safe zones”, “safe countries” and “dumping grounds” such as Nauru and appointment

of new immigration officers such as Libya. Post September 11^th events have made the refugees more vulnerable. Yet, the refugee rights continue to be considered at the United Nations mostly within the four walls of the Headquarters of the UNHCR during its annual Executive Committee meeting. The Executive Committee meeting where governments pledge funds to the UNHCR is hardly the forum to discuss “rights”. In any event, as an implementing agency, UNHCR spurns any criticism and carefully chooses the NGOs – its implementing partners to participate in the deliberations. The UNHCR is increasingly becoming the most expensive humanitarian agency, more so when it cannot have access to the refugees like most humanitarian NGOs without the invitation of the host country.

Asia: Problem with MOU between Vietnam, Cambodia and UNHCR

The MOU signed on 25 January 2005 to find a final solution for some 750 asylum seekers belonging to the indigenous peoples of the Central Highlands, who fled from Vietnam following a crackdown in April 2004 exemplifies the kind of “access” UNHCR promotes.

On the returnees, the MOU states, “The Vietnamese side will be responsible for transporting the returnees from the venue of readmission to the localities of their residence before their departure to Cambodia”. UNHCR's access on the Vietnamese side at the time of repatriation remains fundamental for safety and security of the returnees. Human Rights Watch in its report, “Vietnam: Torture, Arrests of Montagnard Christians” of 7 January 2005 documented the torture of the returnees who fled following the crackdown in February 2001. Article 3 of the United Nations Convention Against Torture prohibits refoulement of “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” and that “for the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

For visits to the returnees “at an appropriate time” to be decided by Vietnam, UNHCR “committed to endeavour to obtain the necessary funds internationally for infrastructure projects in the returnee localities.” This is basically rewarding the Vietnamese government for its repressive policies and practices against the Montagnards which caused the exodus and recognising the fact that exodus was caused by economic reasons and not because of “a consistent pattern of gross, flagrant or mass violations of human rights” as widely documented and reported. It is another matter that without necessary control over the projects, UNHCR's endeavours may accelerate Kinh-isation of the Central Highlands, further intensify the conflicts and cause exodus of asylum seekers.

Ill-treatment of the Montagnard refugees by Cambodian government and UNHCR is not new. After UNHCR pulled out of a repatriation agreement with Hanoi and Phnom Penh on 22 March 2002 following resettlement of about 1,000 ethnic minorities in the United States, the situation of the Montagnard asylum seekers further deteriorated. Many asylum seekers were tortured by Cambodian security forces and handed over to the Vietnamese border guards until another major influx after April 2004 drew international attention.  As UNHCR closed its office in Rattanakiri, asylum-seekers had to travel some 600 kilometres over land to reach Phnom Penh. Despite such difficulties and repression, hundreds of refugees managed to reach the Office of the UNHCR in Phnom Penh since late 2003. UNHCR’s role in providing assistance to these asylum seekers remains questionable.

Following the collapse of the ceasefire between the Free Aceh Movement, Gerakan Aceh Merdeka (GAM) and the Indonesian government in May 2003, scores of Acehnese fled to Malaysia to seek asylum. Majority of the Acehnese asylum seekers however cannot approach UNHCR due to fear of arrest. In mid-September 2004, the police arrested 15 refugees from outside the UNHCR office in Kuala Lumpur. In a similar crackdown in August 2003, Malaysian police arrested and detained more than 200 Acehnese asylum seekers from outside the UNHCR office. According to UNHCR by 1 October 2004, about 300 refugees are currently detained at immigration detention centers in Malaysia. When Malaysia recently launched the mass deportation of the socalled illegal immigrants, it failed to make any distinction between the asylum seekers and the illegal immigrants.

With the closure of the Dalai Lama Offices by Nepal, the Tibetan asylum seekers have become more vulnerable. The Nepalese officials repeatedly refouled the Tibetan asylum seekers. On 13 January 2004, three Tibetan refugees, including one minor, were handed over to Chinese border police by Nepalese officials at the Friendship Bridge border post at Dram.

Europe: Libya as the new Immigration Officer

In the post-September 11^th, the asylum seekers and refugees have become more vulnerable. The European Union, which promoted the rule of law including the rights of the refugees, has been adopting anti-refugee laws. Many European governments which were hitherto considered as leaders on human rights have started questioning the absolute nature of the prohibition against torture and principles of non-refoulement.

Taking advantage of the post September 11^th period, many countries across the world have been promoting illegal detention. Australia legalised the exclusion and sought violent solution by dumping the asylum seekers in Nauru and other Pacific Islands.

The European Union started its process to undermine the refugee rights by identifying countries as “safe” and borrowing the discredited Australian example to establish centres to process asylum-seekers off-shore, in North African countries.  And today, Libya, which has been pariah of the international community until recently, has been upgraded to be the immigration officer of the EU. In October 2004, hundreds of newly arrived African and Middle Eastern nationals were speedily returned from the Italian island of Lampedusa to Libya without adequate safeguards. Hundreds of refugees from Ethiopia, Eritrea, Somalia and Liberia are being deported from Italy to Libya. The fact that Libya has neither ratified the Refugee Convention nor established national asylum procedures, does not seem to bother EU. Libya may as well ratify the 1951 Convention Relating to the Status of Refugees or develop national law on refugees at the behest of the EU. UNHCR is unlikely to hesitate to become an accomplice given its attempts to develop national laws on refugees across the world. This is despite the fact that after months of lobbying for a national law, Cambodia agreed to consider a law which falls short of international law and UNHCR had to abandon the idea.

Africa: Erosion of refugees’ rights to international protection

Amnesty International in its February 2005 issue of the monthly The Wire highlighted erosion of refugee rights in central Africa. It reported of the lack of guarantees for safety and torture of refugees in Tanzania where large number of refugees from the Great Lakes region – notably Burundi, Rwanda and the Democratic Republic of Congo sought refuge.

Amnesty International states, “UNHCR changed its policy regarding Rwandese refugees in September 2002. It now actively promotes their voluntary repatriation. This decision was not based on objective information regarding the human rights situation facing returning refugees to Rwanda. Close to 25,000 Rwandese refugees were forcibly repatriated from Tanzania in the last two months of 2002. The international protection and assistance given to Rwandese refugees currently in Tanzania is questionable. UNHCR has also considered withdrawing the refugee status of Rwandese refugees by invoking “cessation clauses”, thereby terminating their international protection.”

The Need for the UN Special Rapporteur on Refugees

The refugees are one particular group of persons who are not discussed at the United Nations Commission on Human Rights (CHR). The agenda item 14(c) of the CHR titled “mass exoduses and displaced persons” has been reduced to internally displaced persons. At the 60^th session, the Commission on Human Rights considered only the reports  (E/CN.4/2004/77 and Add.1-4) of the Representative of the Secretary-General on internally displaced persons. However, the refugees across the world are subjected to arbitrary detention, torture, extrajudicial executions and refoulement.

There is a need to recognise and ensure respect for the rights of the refugees. They must not be considered as a group of persons who require “charity”. It is unfortunate that the rights of refugees are yet to be discussed by the CHR. The 61^st session of the Commission on Human Rights must take decisive action for the appointment of a Special Rapporteur on the Rights of Refugees and discuss the refugee rights as a separate sub-item of the agenda item 14 from the 62nd session onwards.