Inaugural Address by Ms. Erika Feller, Director, Department of International Protection, UNHCR, at the Canada Research Chair in International Migration Law, Centre for International Studies, University of Montreal: Who is a Refugee and who is not - the Crisis of Identity as a Challenge to Protection
Messieurs le recteur designe, Madame la Doyenne, Monsieur le Directeur Crepeau, Mesdames et Messieurs les Professeurs, Mesdames et Messieurs,
C'est un grand honneur pour moi d'avoir été invitée par la Faculté de droit de l'université de Montréal à prononcer le discours inaugurale de la Chaire de recherche du Canada en droit international des migrations. Je suis doublement ravie de vous accompagner aujourd'hui, au vu de l'importance que le Haut Commissariat des Nations Unies pour les Réfugiés attache au renforcement des échanges et des partenariats avec le monde universitaire dans le but de renforcer la protection des réfugiés, qui est la raison d'être du HCR. Vous me pardonnerez si je me sens plus à l'aise dans la langue de Shakespeare que dans la langue de Molière.
Who is a refugee and who is not? What is a refugee problem? These are perennial questions with ever changing answers. International law holds some of the answers, but by no means all. The law tells us refugees are victims. They are persons persecuted and forced to flee their countries; they are increasingly, as well, persons victimized by generalized violence and internal strife which equally makes stay untenable. They do not include persons whose behaviour is so reprehensible that they forfeit any claim to the protections to be accorded to refugees. The refugee problem is, as a result, characterized at law as a human rights issue, a social and humanitarian problem necessitating an international response built around solidarity, burden-sharing and agreed international principles. These are the traditional answers to the two questions posed, and of course remain the position at law.
If you ask these questions broadly around today in our societies - other than to lawyers of course - the answer might come out a little differently. A refugee, you might be told, is an illegal immigrant, a person more often than not who has turned to criminals like people smugglers for help and hence is an immigration issue in a different guise, and a law and order problem as well, to be dealt with firstly as a matter of border and crime control. Interior Ministries, not Foreign Ministries, call the shots.
How a problem is characterized can be very significant to how it is managed. To put it simplistically, the human rights approach opens doors and creates a protection space. The immigration and trans-national crime orientation closes those same doors and works often to deny protection to those in need. UNHCR has been working for some years now to try and reverse the tendency to reduce down to the absolute minimum the rights and responsibilities at issue because of a mischaracterization of the problem and the people who are part of it. Our starting point has been that protection is a legal requirement and a necessity, not a policy choice. Our efforts have included initiatives to re-instate the centrality of international refugee law, and to locate the principles in their modern context so that they cannot be swept so easily aside as somehow outdated or irrelevant. We have also cooperated in efforts to devise new tools to manage problems of a mixed character, so that refugees who may - indeed do - arrive side by side with irregular, would-be migrants, or excludable persons of dubious background, are identified and lifted out of the complex of barriers to entry. Finally we have focused more consequently on both ends of the spectrum of the problem, with solutions our orientation as much as entry and asylum. In the time available to me today, I want to examine these various issues, what their implication are for UNHCR and how we see you might help us with them.
On 14 December 1950, in passing General Assembly Resolution 428(V), Member States of the United Nations accepted a common description of the refugee concept. The following year, with the elaboration of the 1951 Convention relating to the Status of Refugees and subsequently with its 1967 Protocol, augmenting provisions were entered, solidifying in international law who is - and who is not - to be considered a refugee. Thus, according to Article 1A of the 1951 Convention, a refugee is a person who is outside the country of her or his nationality and is unable or unwilling to return to it owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Through the Convention, Member States laid the cornerstone of international refugee law, including the most fundamental of all international refugee law obligations, codified in Article 33 of the 1951 Convention: the prevention of refoulement.
As noted in the Preamble to the 1951 Convention, its purposes are inter alia to ensure to refugees the widest possible exercise of their fundamental rights and freedoms; to enhance international cooperation; and to recognise the social and humanitarian nature of the problem of refugees. In an effort to ensure the broadest possible application of these principles, the then-Organisation of African Unity in 1969 extended the refugee definition to include victims of generalised violence. A similar extended definition was adopted in 1984 by Latin American States under the Cartagena Declaration on Refugees. In an unprecedented Declaration of States Parties to the 1951 Convention and the 1967 Protocol, agreed on 13 December 2001, support for the 1951 Convention regime and commitment to its strengthened implementation was explicitly reaffirmed. The re-affirmation took place in the virtual wake of the devastating terrorist attacks on 11 September 2001.
This somewhat long recitation of facts has the purpose of providing context to my main thesis, which is that while we may think it is now clear and decided who is a refugee, the fact is that the concept is ever murkier. And refugee protection is the first victim here. I will build my following remarks around three propositions: that refugees are not migrants; that refugees are not terrorists; and that it is detrimental - even dangerous - to allow asylum issues to be overtaken by the broader migration and security debate.
1. Refugees are not migrants
There is no doubt that there is some abuse of the asylum system by illegally arriving would-be migrants. Abuses seem more prominent in countries where legal avenues for immigration are limited or non-existent, or where procedures are drawn out and expensive. Asylum is then sometimes used for backdoor entrance, an opportunity that is not missed by smugglers and traffickers who exploit human misery for their own gain.
The issue is complicated by the fact that trans-country or trans-continental movements are rarely homogeneous. They are provoked not only by human rights violations and conflict, but also by economic marginalization, poverty, environmental degradation, population pressures or poor governance. Hence, refugees are increasingly part of movements of a mixed character. As a result, the distinction between refugees and migrants is confused in the public mind, the policies of governments and the laws of states.
Perhaps, it is not surprising, even if very worrying, that we see in the tabloid press banner headlines decrying "queue jumpers", "bogus asylum-seekers", and "illegal refugees", while, within the broader migration debate, there is a tendency to subsume refugees too quickly into the broader class of "migrant". This melding is insidious: as the line between "migrant" and "refugee" blurs, so does the distinction between migration control and refugee protection.
Confusing the two categories in this way is a danger to refugee protection. Where refugees are seen as little more than a sub-group of irregular migrants, the control of their movement is likely to take precedence over meeting their protection needs, with asylum laws being now often but a part of more general immigration restriction legislation in many countries. Refoulement, the return of a refugee to a territory where her or his life or freedom is threatened, is but one, potentially grave, consequence.
Moreover this confusion plays into the hands of irresponsible politicians, whose rhetoric draws upon and feeds the fears of those who see strangers as taking their jobs, who might be terrorists or criminals, who might upset the ethnic balance, or who might just stay too long. Politicians take advantage of this confusion for tried and true reasons: xenophobia sells; xenophobia wins elections; xenophobia is emotive and distracts attention from domestic issues of real importance. And xenophobia is a major contributing factor to policies to keep refugees out, or to deter them from staying.
Confusing refugees and migrants is not only dangerous, it is also legally unsound. The right to seek and to enjoy asylum is firmly entrenched in international human rights law, in particular Article 14 of the Universal Declaration of Human Rights. Migration has no such international legal underpinning. Because they lack the protection of their own governments, refugees have been made the beneficiaries of an internationally endorsed protection framework, supplemented with constitutional, legislative and "soft law" guidelines to ensure the proper treatment of refugees. Refugees can also benefit from the services of a United Nations agency, UNHCR, specifically created to ensure their protection and assistance. In this sense, refugees have a distinct legal personality, internationally recognized by, at least, the 145 States which are currently party to the 1951 Convention or 1967 Protocol.
Migrants are ironically less fortunate. There are a wide range of agreements of various sorts relating to the management of migration. The focus of governments has, though, centered rather heavily on this one aspect, i.e. the better management and control of the movement of migrants, rather than on defining and protecting their rights. Migrants are not, yet, a recognized group as such, with a cohesion and status which equates with that of refugees. In important areas there are no rules or guidelines to regulate inter-state cooperation on migration. There is also no global body charged with this concern.
In short, for as long as the designation "refugee" remains key to recognition and protection of rights and the exercise of responsibilities which attach thereto, refugees and migrants should not be confused.
2. Refugees are not terrorists
Another identity challenge is to distinguish refugees, in the minds of local peoples and the policies of governments, from common criminals or, worse, potential terrorists. The challenge is made no less difficult by the fact that asylum-seekers quite frequently resort to illegal means of departure and transportation, and thereby help to fuel a flourishing smuggling trade in human misery. Thereby the refugees among the arrivals help to "vilify" themselves, through this taint of criminality which hangs over them, even where - as is often the case - they had no alternative legitimate possibilities for departure. It is an easy slide from "criminal" to "terrorist" in today's world. There is no evidence that any of the suspects in the September 11 attacks were asylum-seekers or refugees. The same is true of the Bali and Madrid bombings. Despite this, an apparent link between terrorism and asylum seems to have emerged, a myth partly perpetuated through ambiguous connections made by the United Nations itself. For example, various Resolutions of the Human Rights Commission and the General Assembly on "Human Rights and Terrorism" call upon States "to take appropriate measures in conformity with the relevant provisions of national and international law, including international human rights standards, before granting refugee status, with the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorists acts, including assassinations, and to ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorists acts and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists."1
Obviously, UNHCR fully supports all legitimate efforts by governments to combat transnational crime, people smuggling and terrorism. In this process, though, our concern is to have recognized, as an important point of departure, that genuine refugees are themselves escaping persecution or violence, including terrorist acts. They are not the perpetrators of such acts. A second starting point for us is that the international refugee instruments should not be characterized as providing a safe haven for terrorists. In this context we encourage rigorous use of the exclusion clauses of the 1951 Convention, which are exhaustive.
Article 1F of the 1951 Convention describes those who, despite otherwise meeting the inclusion criteria of the refugee definition found in Article 1A, are nevertheless undeserving of international protection. Persons are to be excluded if there are serious reasons for considering that they have committed a war crime, a crime against humanity, a serious non-political crime outside the country of refuge prior to admission to that country as a refugee, or acts contrary to the purposes and principles of the United Nations.
UNHCR encourages States to use the Article 1F exclusion provisions rigorously, albeit appropriately, and offers its advice on how to apply them. In this regard, in 2003, UNHCR issued updated and revised Guidelines on the application of exclusion. These guidelines address the challenge of applying Article 1F in a manner consistent with the principles of international refugee and criminal law as well as with due process guarantees. Amongst other matters they look at how to handle claims from members of organizations included on UN sanctioned lists of terrorist groups. The guidelines also recommend the setting up of special procedures for review of cases deemed to justify particular scrutiny from an exclusion standpoint.
The exclusion clauses are not the only safeguards in the Convention against abuse of asylum. Even where an individual is considered a refugee, and found to be deserving of international protection, Article 32 makes provision for expulsion, where national security or public order is threatened, as long as the expulsion is in pursuance of a decision reached in accordance with due process of law, and other procedural safeguards are met. States are to allow a reasonable period for the refugee to seek legal admission to another country, but may, in the meantime, "reserve the right to apply during that period such internal measures as they may deem necessary".
In addition, while Article 33(1) of the 1951 Convention prohibits the expulsion or return (refoulement) of a refugee in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened, even this is not absolute. Article 33(2) specifically provides that:
- "The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."
In short, far from allowing shelter for terrorists, the Convention regime provides for their identification, prosecution, extradition or expulsion. Nothing in the Convention provides licence to refugees to commit crimes2, let alone undertake terrorist actions, and nothing in the Convention shelters them from justice.
Despite this, a number of countries have revisited their asylum systems from a security angle, and have markedly tightened them in the process. In some cases, the grounds for detention of asylum-seekers have been broadened. Others have changed legislation so as to limit access to asylum procedures, or to resettlement opportunities. Extradition is a growing feature of the asylum/security equation, with "diplomatic assurances" sometimes being used to circumvent the requirements of Articles 32 and 33 of the Convention. There is also a growing trend toward shortcuts in due process, and on occasion disregard for basic rights, such as family unity, within national asylum systems. This is a dangerous downward spiral. It is salutary to remember in this context the words of the Secretary-General in his commemoration address on the first anniversary of the attacks in Madrid, "terrorism is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our response, we will be handing victory to the terrorists."
Why? Because it cedes the moral high ground to terrorists; because it diminishes the very rights and freedoms that terrorists aim to destroy; because it promotes hatred, suspicion and xenophobia; because it diminishes humanity and responsibility.
If and when is curtailment of basic rights, such as the right to asylum, ever justified by the exigencies of tightening terrorism? Courts are increasingly having to pronounce upon such dilemmas. The Board of Immigration Appeals in the United States is for example considering an appeal from an order by an immigration judge in El Paso, Texas, who deemed four Burmese Chin asylum-seekers who crossed into the United States from Mexico to be barred from asylum, having provided "material support" to a "terrorist organisation". According to papers filed on their behalf, the "terrorist organisation", which does not appear on the list of Designated Foreign Terrorist Organizations under relevant legislation, is the Chin National Front. Most, if not all, of the asylum-seekers actually support the CNF; however the level of this commitment is not clear, and on occasion is manifested by support in the form of a donation of $1.50 and a pair of binoculars.
Many of you will of course be familiar with the Suresh case. Much has been said about it, examining both its merits and deficiencies, and I need not recapitulate these today. I was interested to note, however, the comments of Dawson J. in her Reasons for Order in the recent case of Mohamed Zeki Mahjoub v The Minister of Citizenship and Immigration and the Solicitor-General of Canada3:
"I acknowledge an issue of importance has been raised which I do not decide: whether circumstances would ever justify deportation to face torture. The Supreme Court of Canada has left the issue open by not excluding the possibility that, in exceptional circumstances, such deportation may be justified, either as a consequence of the balancing process required by section 7 of the Charter or under section 1 of the Charter. There are, however, powerful indicia that deportation to face torture is conduct fundamentally unacceptable; conduct that shocks the Canadian conscience and therefore violates fundamental justice in a manner that can not be justified under section 1 of the Charter. Those indicia were canvassed by the Supreme Court in Suresh and include: Canadian domestic law prohibits torture; section 12 of the Charter prohibits cruel and unusual treatment or punishment (reflecting that, within Canada, torture is seen to be so repugnant that it can never be an appropriate punishment); extraditing a person to face torture has been found to be inconsistent with fundamental justice; and, a strong argument exists that international law prohibits deportation to torture, even where national security interests are at stake." (emphasis added).
I am aware that Canada intends to reform its asylum and refugee status determination regime. I understand that one driver of the reform process is public demand for a more efficient system, against a background of abuses of the system and security concerns. Needless to say, UNHCR supports fair and speedy decisions, as long as speed does not compromise the fairness of decisions. Our interest is that reforms should measure risks to national security against real dangers, and not mere perceptions. To all states currently reviewing their asylum laws we make a repeated plea that the identity of refugees as refugees, not as sub-classes of a different genre, be fully respected in whatever adjustments are introduced to manage what is, in reality, a problem very different from the refugee problem.
The Way Ahead
Let me now recap my main thesis and reflect a little on the way ahead.
Refugees are victims. They are persons driven from their homes by persecution or violence, with their innate identity - their ethnic or national origins, their ingrained beliefs, their circles of belonging, their gender - one central cause for their displacement. Their identity at law is long established.
It is of great concern that the defining features of refugeehood and the rights and responsibilities which attach to refugees are losing their precision. The identity of an asylum-seeker today is anything but that of a genuine refugee, anything but a victim, in the minds of many, in the tabloids and in the policies of an increasing number of states. Rather, that person is first and foremost an illegal migrant, a potential terrorist, a transnational criminal, at best a likely abuser of the national asylum system. Asylum policies are more and more driven by security concerns and migration control imperatives, than by the demands of protection. Refugee policies are divorced from asylum policies and proceed on the basis that a genuine refugee is someone who has taken shelter in someone else's country and must be helped to stay there, to return home, or on an exceptional basis be invited to enter in an orderly manner.
In my address to the Executive Committee of UNHCR in October last year I explored the idea that one of the most important obstacles to protecting refugees over recent times has been the mischaracterisation of the refugee problem leading to ill-conceived responses which have worked to deny protection more than facilitate it. In our view the refugee problem is not a migration problem. It is not one inseparable from criminality or terrorism. Spontaneous arrivals may have valid claims. The convention is not an irrelevant tool and the protection framework is not unhelpful, as some would have us believe, to good management of asylum and refugee challenges. Better management of the problems is what we should all be aiming at, which is achievable in our view through sharpening the tools, broadening the base of partnerships, ensuring the burdens are more equitably shared and investing more in the sustainability both of temporary stay and earlier solutions.
These of course are easy suggestions to make, but not so easy to realise. UNHCR has invested much effort over recent years in trying to give them meaning. We have run a two-year process of Global Consultations on International Protection [2001-2002] designed to reinforce commitment, on the part of states in particular, to the basic protections of the Convention regime, to improve understanding of important provisions of this instrument in their modern context, and to stimulate thinking on new ways to protect. The main outcome of the Global Consultations process was the Agenda for Protection - UNHCR's Millennium Declaration, if you like - setting out an ambitious but practical programme of action around six main goals. These are, to summarise: strengthened implementation of the 1951 Convention; better protection of refugees who move within broader migration movements; sharing the burden of hosting refugees more equitably and building the capacity of host States to offer asylum to refugees; dealing with the security problems which are ever more prevalent for refugees and indeed the humanitarian personnel who help them; finding more timely solutions; and meeting the particular needs of women and children. Another significant result was the earlier mentioned ministerial level State Parties Declaration, adopted by consensus in December 2002, which takes the position that the Convention is a still relevant instrument, sound in its basics, which has not lost its place as the cornerstone of refugee protection. Finally the Consultations were the genesis of a new series of interpretative guidelines issued by UNHCR on important provisions of the Convention, including the aforementioned exclusion guidelines.
In follow up to the Consultations, the then High Commissioner, Mr Lubbers, launched his Convention Plus initiative, which is ongoing and has as its objective improving the consistency and reliability of the support of our partners for UNHCR's programmes. One thing, he found, was for governments to lend their moral support; another was for them to produce the necessary funding. One thing was for our partners to see the wisdom of what we were advocating for refugees; another was for them to see the relevance of this to their own territories, aid strategies or, in the case of our agency partners, their own programmes. The Convention Plus initiative rests on two pillars: the Convention as the outer frame and within it, and consistent with it, efforts to devise strategies to realise effective protection closer to the source of the demand, to manage irregular secondary migration and to free up other sources of funding [including in particular development funds] for making solutions more durable.
Another initiative of the High Commissioner went under the label UNHCR 2004. If the Global Consultations were outward looking, this was an inner, soul-searching exercise for UNHCR itself. The idea was that UNHCR, as one of the main instruments at the disposal of governments to help them better manage their responsibilities, and at the same time as the first line of defence for the refugees themselves, had to be as effective as possible on both counts. This necessitated a careful review of the relevance of our mandate to today's refugee problems, the utility of our partnerships, the productiveness of our relationship with our intergovernmental oversight body, and our place overall in the UN system, with its new focus on collaborative approaches, rather than go-it-alone or lead agency driven responses. The 2004 initiative led to some changes, albeit rather modest in character - for example the lifting of the temporal limitation on UNHCR's existence [up to this point the General Assembly had had to give us a new lease of life every 5 years] - and it provoked a more forthcoming response on the part of all concerned to UNHCR assisting displaced people outside classic refugee situations, notably internally displaced persons, but also stateless people.
So we have been making our contribution to thinking through the challenges of better managing forced displacement in all its modern forms. States have not, of course, waited for us here. Many of you may be aware of some of the "blue sky" proposals put on the tables of European Ministers, including that refugees be protected in safe zones or protection areas set up in regions of origin. We are very much at odds with such notions. This being said they have provoked us into articulating alternative models. Our preferred model is one which rests on well functioning national systems, buttressed by investment in more effective protection and better hosting capacity in countries of first asylum. The two are necessary, not one at the expense of the other. Hence we have been working with governments keen, or at least prepared, to strengthen their own asylum laws and processes for receiving refugees and handling their claims. We have, for example, launched a so called "quality initiative" focused on making first instance decision making more expert and expeditious in the UK. We have, in addition, lent our services to countries interested in developing a resettlement capacity as an important adjunct to their management of spontaneous arrivals. Finally we have embarked upon a number of projects with the practical aim of identifying where are the real gaps in protection delivery in countries of first asylum and how cooperation between these countries and the broader donor community might be improved so that gaps are bridged and capacity is there to deliver quality protection, in the shorter and longer term. It is a multi-pronged strategy, built on international cooperation and burden sharing.
In going down this line, we have had to wrestle with a number of dilemmas, one of which this audience might find interesting. It has been illuminating to me, with my essentially law based view of the world, to see the very relative place that rights and responsibilities are sometimes accorded in the design of strategies to manage refugee problems. The 1951 Convention is firmly rooted in human rights. The rights-based approach is dogma now for the UN. The fact, however, is that the rights are loosely defined and the responsibilities which should flow are not often clearly enough connected, either to the rights themselves, or to the individual holders. This is perhaps inherent in the imprecision generally of international law and the fact that it was drafted, in the main, by diplomats, working from the standpoint of national interest, rather than by lawmakers from a rule of law optic. The result is that, as the definition of the problem becomes ever more ambiguous, with refugees and migrants, or refugees and potential criminals being seen as one in the same in important ways, the rights-based approach does not take us nearly as far as it should. We have had to engage in often very complicated debates about the content of protection to which an individual is entitled, from which state. Who owes what, to whom, and when, is ever more difficult to argue - which means, also, that it is becoming less and less helpful as the basis around which to build programmes. International cooperation within multilateral action plans action which are driven by humanitarian parameters as much as legal norms, is where states are happiest to go.
The dilemma for us is where to draw the bottom lines. If our objective is protection delivery and realisation of viable, safe and humane solutions on a timely basis, does it matter that needs, not norms, are the main driver? Many governments will say no. Sometimes we have to say no. As the protection spokesperson I say yes, it does matter, but in relative not absolute terms. I do have a natural inclination to be wary about those who try to distance the regime of rights and principles from the exceptional situations which they do not so directly address. Their position tends to be that accountability in such circumstances can only be for the best result that was possible, rather than for the ultimately most desirable result flowing from the principles. This, to me implies a judgement based on a blinkered view of refugee law as somehow static, a body of immutable rules. Refugee law is, though, in my experience, not and cannot be an unchanging instrument. As with all branches of law, it must retain its inherent capacity for adjustment and development in the face of changed international scenarios. Increasingly political, social and economic realities around the world are challenging the modalities of refugee protection and the application of the regime of principles. A sine qua non for the renewal of protection, in my view, is the establishment of a structure of thought and a body of principles which squarely meet today's conditions. The framework for protection has to preserve the fundamentals of the 1951 Convention, and be solidly grounded in international human rights law, but it needs reinforcement both through new law making and some adjustment of concepts, so that it pays due heed to the realities on the ground. This I see as the direction we need to go down at this point. The Global Consultations Process, Convention Plus and the range of other initiatives I have described flow from this position. UNHCR has a moral, legal and mandate responsibility to foster the process of reinforcing and developing the standards. In so doing, I hope that we will be able to counter a certain unwillingness out there to believe that to do the right thing ethically can also be the best thing practically and, for the longer term, the most cost effective.
How can the Centre for International Studies contribute? Let me make some observations here.
Part of UNHCR's supervisory role is to intervene in problem cases, which we often do in both quasi-judicial settings or before courts, in the form of amicus curiae briefs, advisory opinions, statements or letters. We do this to promote a more inclusive and appropriate interpretation of the Convention definition. Lawyers and judges often face dilemmas in using international law as an authoritative basis for reasoning or decision making. The imprecision of the language of international law is indeed a drawback. The challenge is to interpret the principles in a manner that strengthens the protection framework, to take a purposive approach to using international law which places the focus less on the strict letter and more on the object of the text, the victim, and the palliative purpose of protection. We have been working together, with legal institutions amongst other things to promote within the judiciary and with quasi-judicial decision-makers world-wide, a common understanding of refugee law and asylum principles, to encourage the use of fair practices and procedures to determine refugee status, and to promote capacity-building and networking. Here I do see scope for greater activism. In particular, I would emphasise the importance of research training, capacity-building and networking and your institution could be a useful resource for such activities.
Perhaps more important - and I will end on this - while we have to be very careful about not mixing up refugees and migrants, we must also not be closed to the possibilities for improving protection that a new international focus on migration is slowly opening up. Here, I believe, research institutes such as yours will have an instrumental role to play. Let me expand.
We have been only partially successful through our various activities in reversing the current setbacks for refugee protection. We are now, though, receiving assistance from an unlikely ally, if it can be so termed, and that is the negative demographic trends being witnessed in the developed world. As populations age, birth rates decline and economies start to suffer, the possibilities of migration, rather than the threats only, are beginning to receive serious attention. Governments in countries in Europe that have never considered themselves countries of immigration - such as Spain, for example - are in the process of radical administrative restructuring to accommodate a shirt towards embracing migration. Departments are being set up, portfolios are moving from one to another department and new designations are coming into being. To continue with the example of Spain, migration entry used to be a Home Ministry responsibility, for regulation through border management. It has now been re-defined, with more positive connotations, as a Labour and Social Affairs matter, with targeted entry rather than deflecting entry a new goal.
What are the directions such an evolution opens up for UNHCR, and its protection mandate? For as long as migration has suffered overall from a negative image, and control to keep it to a minimum has been a driving motivation of the policies of many governments (migration countries like Canada excluded of course), our task has been to maintain the distinctions between refugees and migrants. We have carefully delineated the differences and have been encouraging states to re-establish the links, severed some time ago now, between asylum policies at home and refugee policies abroad. As governments move cautiously but more positively to embrace migration, we may need to re-calibrate our own policies towards the asylum-migration nexus issues.
There are both opportunities and dangers rolled into one here. Solutions for refugees should be a beneficiary. We have been making efforts recently to re-habilitate both the resettlement and the local integration solutions, encouraging states to see the potential of refugees as a positive factor in their development, not only as a recipient of aid and a long-term liability. As a labour and social affairs orientation to migration comes into better balance with interior ministry concerns in developed countries, there is clearly scope to bring them to see refugee problems also from that optic. There may, for example, be the possibility of additional avenues for third-country resettlement for refugees who possess the sought-after migration profile. We are looking at this. The danger, of course, is that the criteria for resettlement, which is intended to serve (not exclusively but certainly importantly) a protection function, will become too heavily focused on integration potential. This is a problem we have experienced in the past, which was among those prompting us to keep refugees and migrants as distinct categories, and which we would not want to see re-emerge. The protection channel which resettlement offers must not be narrowed.
In other parts of the world, where the demographics not least are clearly different, immigration may not be so obviously compelling. This being said, it is a fact that the presence of refugees can make a major contribution to the development of otherwise remote and forgotten regions of a country and may well become the reason for a thriving local economy. Refugees may even become the backbone of the workforce in certain industries. UNHCR is piloting projects in a number of parts of the world designed to bring out the important and positive links between national development and refugees. UNHCR has been fostering these links through a range of initiatives designed to anchor refugees and their local integration more substantially and securely into the development plans of governments, as well as the aid programmes of donor countries and institutions. In addition, we have been encouraging other states to be sensitive to the evolving character of refugee problems, appreciating at what point they are best managed less as protection issue and more as a temporary migration challenge. This is in recognition of the benefits which temporary labour migration has brought. The Afghan situation in Pakistan is an obvious example here - at least to us.
All this to say that the identity dilemmas which confront the realisation of our protection mandate may soon no longer call for such clear and unambiguous responses of the past. We knew we had to fight for the independent character of refugees. We still need to make it clear that a refugee is a person who needs and is entitled to benefit from a particularised regime of rights, which migrants more generally are not. It is crucial to refugee protection that we continue to work to decriminalise refugees in the public mind and the policies of states. However, it is increasingly evident also that we need to reposition refugees in the migration programmes of states more generally, as they move still tentatively, but nevertheless forward, to embrace the promise of migration.
Merci de votre attention.
1 This language is found in many Resolutions of the Human Rights Commission and the General Assembly, most recently UNGA Resolution A/RES/59/195 of 22 March 2005 on "Human Rights and Terrorism". However, UNGA Resolutions on "Protecting Human Rights and Fundamental Freedoms while Countering Terrorism" (e.g. A/RES/59/191 of 20 December 2004) requires that " ... States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law". This latter language also appears in Security Council Resolutions on combating terrorism. See, for example, S/RES/1456 of 20 January 2003.
2 Indeed, Article 2 of the 1951 Convention provides that "Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order."
3 2005 FC 156, 31 January 2005, at page 64.