Address by Ms. Erika Feller, Director, Department of International Protection, UNHCR: Roundtable in Commemoration of the Ratification of the 1951 Convention and the 1967 Protocol, Madrid, Spain
The Convention and the Plus in "Convention Plus"
Hardly a day goes by without stories about refugees publicly a part of it. Either they are being created, through injustice, persecution or violence, or they are being mistreated, repelled or expelled. Their situation is a constant subject for sympathy, but increasingly also for vilification. So much is witnessed, discussed, feared or strategised about, that policy options are multiplying with eyes even more fixed on the future. As a result it is all too easy for some to relegate the protection tools of today to the dustbin of the past. That would be a bad mistake. Pragmatism and discretion are starting to feature heavily. Norms and international law are, though, still among the most useful of tools bequeathed to us by the past. Cardinal among them is the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
It is not so easy to speak about a Convention now over 50 years old in a way which captures the imagination of those impatient to move on and away. Yet I believe without understanding where the Convention has brought us to, it is not really possible to design realistic policy directions for the future. This is particularly the case if the Convention is to have ongoing worth for the future of asylum and refugee protection. It would be wrong indeed, in our assessment, to deny the Convention this role, not only from the perspective of the refugees, but also in the interests of better global management of this international problem. Law based protection is in everyone's interests.
UNHCR is an active player when it comes to designing new directions. Many of you will have heard of our Global Consultations process, the Agenda for Protection it produced and the High Commissioner's Convention Plus initiative. I will return later to this initiative which is about creating new tools to complement the Convention regime. But let there be no misunderstanding right from the outset. When UNHCR talks of promoting its Convention Plus initiative, what is meant is an initiative which rests on two indispensable bases, the 1951 Convention relating to the Status of Refugees and the arrangements to be put in place to complement it. It would be very wrong to understand the initiative as somehow relegating the legal basis for refugee protection, the Convention regime, to obscurity or irrelevance, in favour of a new humanitarian pragmatism. There can be no Plus without the Convention firmly in place.
Some still tell us that we have to be somehow "modern", not so "legalistic" [a much bandied around word which actually boils down to little more than Convention oriented]. We are told to distance the framework of principles from the new situations not in mind when they were drafted. Accountability of states, they go on, should only be for what was possible under the circumstances. UNHCR is urged not to be just another advocate of what is desirable, but to go for what is practical.
We say in response that this is overly pragmatic. It assumes that the Convention is a static body of somehow immutable rules. This is wrong. Refugee law, as indeed with all branches of international law, has a real flexibility, written into its words and inherent in its very objects and purposes. It also has a capacity for development in the face of changed international circumstances.
When we speak of refugee protection we mean legal protection, in the sense of protection based on entitlements having their basis in law and with which, as a result, states are required to comply. Why do I stress this? Because in our experience, humanitarian action deliberately divorced from law is a poor substitute for protection with a base in principles.
The Secretary-General has recently decided on some overriding and urgent issues he believes would benefit from his personal attention in 2003. One of these is holding the line against what he has deemed widespread erosion of hitherto broadly accepted norms of behavior. He feels that this needs to be pursued across the board: from arms control and non-proliferation (including of small arms), through to respect for human rights and international humanitarian law. Consistent with the Secretary-General's concerns, our own priority is to try and arrest further erosion of the refugee law framework. Non-respect for human rights and international humanitarian law is a major cause of refugee flows. Non-respect for international refugee law standards is a major cause for the onward movement of refugees, often in an irregular manner. And, non-respect for painstakingly achieved fundamental legal guarantees in asylum procedures and decision-making is a major cause why many refugees are not able to access and enjoy the protection they deserve. There is a clear need in the refugee area to reinvigorate the rule of law dimension, and in particular its international foundations.
Why is rule of law essential? Put simply, it regulates the traffic on the roads. Were there no traffic rules, driving a car would be an utterly dangerous undertaking. The rules separate justice, stability and foreseeability from ad hocery, arbitrariness and disarray. Respect for the fundamentals ensures a rational discourse and predictable responses. In today's complex, highly inter-dependent world, the concept of national sovereignty is increasingly circumscribed by the necessity to reach multilateral understandings and agreements, and all the more so for matters, such as refugee problems, that are international by their very nature. No one would deny their transboundary effect, impact and reach. Yet, there has been a trend towards greater unilateralism, driven by domestic interests, delinked from the broader picture. In our assessment it is crucial to reaffirm the humanitarian value of the international refugee protection regime, which is a complex of state practice and refugee law, but draws also on precepts of human rights law and general principles of international law. The 1951 Convention is the cornerstone of this complex. UNHCR, through its international protection mandate and its supervisory role for international refugee instruments, is an integral and important part of the system.
BACK TO BASICS - THE FLEXIBILITY AND RELEVANCE OF THE CONVENTION
As I intimated, it is not so fashionable to talk about the Convention, but I feel this is more than needed, to set the Convention Plus initiative into its proper context. What is the context in Spain? The history of this country is one of continuing contact with the refugee problem, and of generosity in response. This generosity well precedes its membership of the EU.
Spain is a country beset by an irregular migration problem. The number of persons caught trying to disembark clandestinely on the Canary Islands increased fourfold from 2000 to 2002. Last year, Spanish authorities took into custody 16500 boat people on its coasts. It has been estimated that about 4000 persons have tragically drowned in the Strait of Gibraltar since 1997. According to various polls, illegal migration is cited as a source of "major concern" by the Spanish population. Not surprisingly, Prime Minister Aznar was one of the proponents of including migration and asylum issues on the agenda of the Seville summit.
Spain is also a country that continues to witness unacceptable acts of wanton terrorism. In Spain as elsewhere in the industrialised world, in the post September 11 environment the prevailing perception is one of losing control over irregular migration and widespread abuse of the asylum system. The increased focus on the concept of national security has lead to a notable tightening of practices in relation to processing of asylum claims.
It is by no means easy to reconcile the need to control illegal migration and fight terrorism resolutely with the drive to uphold and promote humanitarian traditions and responsibilities towards repressed peoples. The Convention is, still, of considerable assistance here.
144 States Parties have, in December 2001, recognized by consensus that the 1951 Convention constitutes the main cornerstone of refugee protection. It ensures access to, and the quality of, asylum for refugees. Its focus on principles rather than means ensures that the Convention remains a flexible instrument through changing environments, circumstances and trends. Its strength lies, also, in certain of its very particular attributes.
First, the rights within the Convention are largely uncontestable. Among them are the right not to be returned to prosecution or torture, the right not to be discriminated against and the right to enjoy minimum acceptable conditions of stay and standards of treatment. The 1951 Convention is more than a tool for status determination. It establishes the scope and standards in relation to the content of refugee status, providing a framework for states in the development of their national refugee policies. It provides direction and guidance for states to ensure that security concerns and public safety interests are taken into account in the operation of their asylum systems. It is a tool that assists states with identifying asylum seekers who are deserving of international protection, also describing how to exclude those who are not. The Convention specifies the rights of refugees who enter unlawfully in a country, and also underlines refugees' right to freedom of religion, education, protection from discrimination and access to the judicial system. The Convention provides guidance to states on the responsibility to provide social security and ensure fair remuneration for refugees. Furthermore, it prescribes the necessity of providing identity and travel documents.
Second, the 1951 Convention recognizes refugee status as a temporary phenomenon. Article 1 C enumerates the cessation clauses that give guidance to States on termination of international protection. The clauses can be divided broadly into two categories: those relating to a change in the personal situation of the refugee brought about by his/her own acts (contained in sub-paragraphs 1 to 4), and those relating to a change in the objective circumstances which formed the basis for the recognition of refugee status (contained in sub-paragraphs 5 and 6). It should be noted, however, that time-limited grants of refugee status would be incompatible with the Convention - refugees should not be subjected to constant review of their status. Also, the formal loss of refugee status on the basis of the cessation clauses must be distinguished from cancellation of refugee status. The latter is undertaken when it comes to light that the individual should never have been recognized as a refugee in the first place.
Third, it is not an "absolutist" instrument, in fact its language is quite nuanced. A number of Articles quite specifically make access to the rights they provide subject to qualifying conditions. Phrases such as "lawfully staying" or "in the same circumstances" limit quite clearly the number of beneficiaries and scope of the rights at issue, mainly economic and social rights. These include, importantly, those relating to gainful employment, housing, education and public relief, among others.
Fourth, the Convention is clear in excluding from its ambit the non-deserving. It in no way restricts or prevents action against persons engaged in terrorist acts, indeed it explicitly provides mechanisms to allow states to meet its security concerns about individual asylum seekers or recognised refugees. The framework of the 1951 Convention, based on five interlinked requirements, is interesting in this regard. I mention them briefly since they offer an interesting logical structure within the Convention for dealing with the security dimension of international refugee problems:
- Exclusion from refugee status (Article 1 F)
- Criminal law enforcement in the host country (Article 2)
- Expulsion to a third country (Article 32)
- Expulsion to the country of origin (Article 33 (2))
- Cancellation of refugee status
A REFUGEE PROTECTION SYSTEM "FIT FOR THE 21st CENTURY"
This is what we need to construct, according to the UK Home Office Minister Beverly Hughes in a press release of 3 June. Why, in the light not least of what I have just said, might the Convention nevertheless be not quite enough? Perhaps one answer lies in the fact that the system of protection and assistance to refugees has traditionally had a rather reactive character. Its focus is on the exile stage of the refugee cycle, after people have had to leave their countries. It does not really deal with the solutions phase, much less the pre-departure period. Moreover, in stressing, quite properly, the needs of the victim, it takes little account - as it should not - of the interests of states. But, regardless, these interests will necessarily anyway be part of the equation.
"Refugee policy has always been at least one part State interest and at most one part compassion. Appeals based solely on compassion, solidarity or rights are only occasionally successful". [Shacknove 1988] State interests, be they political stability, economic stability, or, particularly after 9/11, national security will have to make their contribution to shaping asylum policies of states.
In particular, the real or perceived burdens of various sorts entailed in granting asylum, just as the availability, or otherwise, of solutions to pursue, will inevitably condition who agrees to give what measure of protection. The Convention regime rests on notions of international solidarity and burden sharing, but offers no agreed indicators, much less formulae, for agreed burden sharing. The Convention foreshadows various types of solutions, as refugee status is by definition a temporary state of being, but again envisages no special arrangements to ensure they are realisable in a timely and durable manner.
Simply put, the Convention is more about rights, less about responsibilities. In the Convention's scheme of things, asylum is a right to seek but not necessarily a responsibility to give. Refugee status and asylum are not automatically one and the same thing. An asylum seeker may be, but is not necessarily, a refugee. Being a refugee is for the individual a factual predicament, to the recognition of which clear indicators attach. The grant of asylum is however still largely a power in the hands of a state called upon to consider it. The 1977 UN Conference on Territorial Asylum was an attempt to give some basic content to the responsibility to grant asylum. It was an abject failure. Discretion is circumscribed, but only by several basic principles and in particular the principle of non-refoulement.
While we share with very many the position that the conventional refugee protection regime is not only worth saving, but indeed fortifying, we also agree that new strategies are needed to, as one respected commentator recently put it, "make refugee protection smarter" [Helton]. For all these reasons, there is a need to find approaches which respect and build upon the Convention's framework making its application more predictable through apportioning responsibilities in particular circumstances against clear criteria, as well as strengthening solutions.
This is where Convention Plus comes in. The initiative is not about substituting for the Convention. It cannot be too often repeated that that instrument has sufficient flexibility and a lot of centrally relevant things to say about the proper handling of refugee problems today. Rather, the initiative is about reinforcing protection through bringing greater predictability into acceptance by States of their responsibilities. Predictability comes through commitment. This initiative calls on States to reach understandings on how and when to build burden sharing and greater access to solutions into humanitarian action on behalf of refugees - and then to commit themselves to stand by these understandings. Comprehensive plans for specific situations, which preserve the fundamentals of protection while paying due heed to political realities and operational needs on the ground, should then be able to be crafted with a greater measure of reliability and less discretion than in the past.
Let us take but one issue to illustrate how more comprehensive plans may assist. Better managing the nexus where asylum and migration meet is, as our High Commissioner sees it, "one of the most urgent policy challenges confronting Europe today". Public confidence in national asylum systems is way down in many countries and protection of refugees is paying the price. Confronted over recent years by burgeoning arrivals of asylum seekers, among them a significant portion of people who have no valid claim to refugee status, States have erected a veritable wall of border migration management measures it is very difficult to scale. The business of smuggling has become lucrative and most innovative as a result, leading to even greater abuse. Approaches do not differentiate between the various causes for the mixed movement, as a result protection needs are often not identified.
A specific angle of the broader migration/asylum dilemmas which is causing particular concern is the so-called "secondary movement" problem. This involves onward movement of asylum seekers from a country where they have found protection to a country in which they would prefer to be. As far back as 1999, the UNHCR ExCom noted in Conclusion No 87 that "..UNHCR, States and other relevant actors are encouraged to enhance cooperation to address the causes of such movements, in particular with a view to ensuring treatment of asylum-seekers and refugees in accordance with the highest possible standards of protection in first countries of asylum, and to creating awareness as to the risks and dangers linked to irregular movements, notably exploitation by traffickers."
The Programme of Action of the Agenda for Protection - the product of UNHCR's 2 year long Global Consultations on International Protection which was endorsed by UNHCR's Executive Committee in 2002 - contains a number of objectives bearing directly on better management overall of the asylum/migration nexus. The Agenda promotes efforts to improve the working of national asylum systems, to strengthen the hosting capacity of first asylum countries and to put in place disincentives to human trafficking and smuggling.
The Agenda offers a platform for action and the Convention Plus initiative would be one enabling mechanism for the development of an international action plan. This is particularly timely, we believe, for Europe, and has been the impetus for recent proposals UNHCR has put on the table to manage the nexus issues.
Asylum and migration have recently become hot political topics in some European countries. This is in part due to very genuine concerns about the way the asylum system is being managed, but also because certain politicians, pressure groups and media are willfully distorting and exaggerating the issue. Built around the 1951 Convention and the directions set out in the Agenda for Protection, UNHCR has recently proposed a three-pronged approach which we believe would, if implemented in a principled way, lead to better management of asylum systems. One prong (or track if you will) centres the regions from which refugees originate; another is geared to the ongoing transformation of the EU into a single asylum space; and the third is about sharpening individual states' domestic asylum systems. This is not a menu of options but an organic whole.
Asylum systems in many European countries - and indeed elsewhere - are encumbered, costly to operate and inefficient. They need, in our assessment, generally to be made fairer and more accessible to those who genuinely need them, but also more effective in differentiating in a timely manner between the claims made. Our domestic prong has this as its goal.
As regards the "regional prong," UNHCR is proposing a more coherent, wide-ranging effort by donor states to support refugees in their original host countries, and to invest more imaginatively in solutions packages which would help them return home, by resettling them to other countries or by helping them to start new lives locally in their region of origin. Development assistance is key here, so as to increase self-reliance of refugees and benefit the countries that host them.
This should result both in better treatment and protection of the refugees where they are, and the removal of some of the reasons that drive them to move on. The issue is not one of setting up physical zones of protection, but about improving conditions wherever refugees are.
UNHCR is also recommending that the EU Member States move more actively towards harmonisation of the procedures for processing the claims of persons who, against clear criteria, are lodging manifestly unfounded claims. These are a very small percentage of asylum claimants and comprise very largely persons who are consciously seeking to use the asylum door to enter into another country for reasons unrelated to protection. They are part of what is generally referred to as the migration related component of a mixed movement of asylum seekers. Why do we want to do this? Because it is precisely the problems associated with the rejected asylum seekers which are confounding national asylum processes and making the climate overall much more negative for the genuine refugee claimants.
Our proposal would have the claims of this small group examined - because the presumption of unfoundedness has nevertheless to be assessed - in a harmonised way, in one or several locations within the EU, by countries acting jointly in this regard. We have emphasized the need to expedite the process so as not to keep people in limbo, as well as the importance of proper conditions of stay, which are consistent with basic human rights principles.
In concluding, Mr Chairman, let me sound a note of caution. Convention Plus will address some, but not all, of today's asylum challenges. It is not a panacea for all things. In parallel, certain additional goals might well be pursued.
Among them, it is of central importance to strengthen national justice systems so that they actually bring criminals to justice. The need to prosecute those involved in terrorist crimes, cannot be over-emphasized. Unfortunately, where foreigners are concerned, expulsion rather than prosecution is more the norm. Greater effort needs to be put into ending impunity by resolving jurisdictional questions, equipping national courts with the technical capabilities to investigate crimes committed abroad, broadening the scope of coverage of international criminal tribunals, including the International Criminal Court, and strengthening the work of the United Nations in the fight against terrorism.
It is also crucial to address public image problems. Refugee protection does not equate with a safe haven for terrorists, as some want to suggest. This only encourages the stigmatisation of refugees and targets them for discrimination and harassment. Refugees are victims of, not responsible for atrocities. Where persons are guilty, they should not receive refugee protection in the first place, in accordance with the Convention's exclusion clauses. In fact, functioning asylum systems should actually directly contribute to better overall security, as entry into asylum procedures offers a process for the identification of applicants, and analysis of their individual histories. While there will always be some asylum-seekers and refugees who have, or will be, associated with serious crime, this does not mean that the majority should be damned by association with the few. Every effort must be made not to give in to public pressure but instead to raise awareness of asylum issues, as well as to provide better understanding of refugees, their background, and the rationale for their protection.
Tomorrow is, by coincidence, also the date for the EU Heads of State Summit in Thessaloniki. One of the topics on the agenda is review of the implementation of the Seville Conclusions on irregular migration. This takes place against the backdrop of unprecedented expansion of the Union. As efforts continue to harmonize asylum policies and to develop a joint European asylum space, it is timely to reflect on the centrality of the Convention, even while new directions are being charted.
One of these directions, Convention Plus will, we hope, build on and reinvigorate the Convention to improve the accessibility of asylum, and the protection environment generally. With the magnitude and frequency of refugee crises today, with asylum systems in shambles [at least in the assessment of a number of states], with pressure mounting for rationalisation of processes and with a plethora of new concepts accompanied by an increasing marginalisation of the "old" asylum notions, the pursuit of order and greater certitude of response is certainly called for.