"The United Nations and the Protection of Human Rights" - The Evolution of the International Refugee Protection Regime
The inauguration of the Institute for Global Legal Studies is to be commended, not only for the promise this holds for expansion of the human rights activities of the Washington University School of Law, but also for the recognition reflected in today's agenda that refugee protection is a human rights issue, rather than principally an act of charity at the discretion of states. It is a pleasure for me to be here today for the grand kick-off event.
Under the theme of the history of the United Nations, I have been asked to speak on the protection of refugees. A short historical perspective on the United Nations High Commissioner for Refugees is perhaps a good way to begin, followed by a review of how the international refugee protection regime has been evolving over the past half century. The year 2001 marks the 50th Anniversary of the 1951 Convention relating to the Status of Refugees. It is an opportunity for us to reflect seriously on the point now reached for refugee protection and where it could or should go from here. I would like to offer some observations from UNHCR's perspective.
When UNHCR first came into existence in 1951, refugees were welcomed non-citizens in many countries. This was not least because, in post-war Europe, they came in manageable numbers, largely from neighbouring countries with some ethnic affinities; their intake reinforced strategic objectives during the cold war; and, as an added plus, they helped to meet labour shortages. Today the term "refugee" has a certain stigma attached which has seriously complicated UNHCR's responsibility to ensure international protection is available to them, as a surrogate for the protection of their national authorities which they have lost. There are of course many reasons for this, which differ country by country, region by region. In aggregate, they include the changing nature of displacement, the costs of many sorts in hosting refugees, the spread of irregular migration and trafficking of people, which has blurred the "migrant/refugee" distinction, and a growing gap between the people in need of protection today and the instruments and tools we have available to provide it. I want now to trace some of these developments in more detail.
Refugees have been around as long as history, but an awareness of the responsibility of the international community to provide protection and find solutions for them dates only from the time of the League of Nations, and the election of Dr. Fridtjof Nansen as the first High Commissioner for Russian refugees in 1921. For the League of Nations, refugees were defined by categories, and specifically in relation to their country of origin. Dr. Nansen's mandate was subsequently extended to other groups of refugees, to include Armenians (1924), as well as Assyrian, Assyro-Chaldean and Turkish refugees (1928). Up until 1950, the League of Nations, and thereafter the United Nations, established and dismantled several international institutions devoted to refugees in Europe. The International Refugee Organization (IRO) was the last to precede UNHCR. The IRO was created in 1947 to deal with the problem of refugees in Europe in the aftermath of the Second World War, and was to be terminated by 30 June 1950. It was soon apparent, however, that the comprehensive nature of the task it had been assigned - to address every aspect of the refugee problem (from registration and determination of status, to repatriation, resettlement, and "legal and political protection") - precluded winding up of the international effort. There was also a growing conviction in the importance of a multilateral approach to resolving refugee problems generally, post the WWII refugee situation.
Thus in December 1949, the General Assembly decided to replace the IRO by UNHCR, which was established, for an initial period of three years, as a subsidiary organ of the General Assembly under Article 22 of the United Nations Charter. On December 14th, 1950, the General Assembly adopted the Statute of the UNHCR. UNHCR's tasks were stated therein to be to provide international protection for refugees and to seek permanent solutions to their problems by assisting governments to facilitate their voluntary repatriation or their assimilation within new national communities. On January 1, 1951, UNHCR began its work with a staff of 33 and a budget of US$300,000.
Half a century later, the augmentation in the statistics is impressive, whether in the numbers of persons of concern to the Office (some 22 million), the annual budget (just under US$1 billion), the number of staff (5000 persons), or the level of its global representation (present in 120 countries). The statistics are a telling illustration of the quite marked, even dramatic, expansion in UNHCR's work since it was set up for a 3-year period 50 years ago.
The 1950s: Development of the international refugee protection regime
When UNHCR was established, the problem was essentially one of the some million individuals remaining who had fled Nazism and later communism in Europe. UNHCR's work was mainly of a legal nature, to ensure entry and ease integration in accordance with the 1951 UN Convention relating to the Status of Refugees. The 1951 Convention was the first (and indeed remains) the only binding refugee protection instrument of a universal character. It was actually an instrument of rather limited intent, addressed particularly to the question of the status of refugees, not to solutions or to causes. While it traced its origins broadly to human rights principles, it was more about states' responsibilities than individuals' rights. A principal contribution it did, however, make was to put in place a global definition of refugee (a person who flees his/her country because of a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion). In 1967, the main caveat attached to the universalist character of this definition - a geographical and time limitation - was comprehensively lifted through the coming into effect of a protocol (presently the only one) to the Convention.
The 1951 Convention did put in place the enduring foundations of refugee protection, by setting out baseline principles on which the international protection of refugees was to be built. These included that refugees should not be returned to face persecution, or the threat of persecution (principle of non-refoulement); that protection must be extended to all refugees without discrimination; that the problem of refugees is social and humanitarian in nature, and therefore should not become a cause of tension between States; that since the grant of asylum may place unduly heavy burdens on certain countries, a satisfactory solution of the problem of refugees can only be achieved through international cooperation; that persons escaping persecution cannot be expected to leave their country and enter another country in a regular manner, and accordingly should not be penalized for having entered into or for being illegally in the country where they seek asylum; that given the very serious consequences the expulsion of refugees may have, such a measure should only be adopted in exceptional circumstances directly impacting national security or public order; that cooperation of States with the High Commissioner for Refugees is essential if the effective coordination of measures taken to deal with the problem of refugees is to be ensured.
The 1960s and 70s: Expansion of the international refugee protection regime
If the 1951 Convention was the baseline, it also contained to some extent the basics only. This became clear in the decade that followed, with UNHCR's protection activities having to reach well beyond Europe into countries, particularly on the African continent, experiencing the painful process of decolonization. The individualized and persecution based approach in the 1951 Convention to defining beneficiaries and their rights was not so helpful here. The mass numbers of refugees and the generalized conflicts which precipitated their displacement ensured a growing mismatch. The General Assembly felt it necessary on occasion to extend UNHCR's mandate to protect and assist groups of refugees falling outside the definition and geographic ambit of the 1951 Convention, while UNHCR began the process which was to lead effectively to Convention's 1967 Protocol.
Simultaneously regional instruments were being developed, which in effect updated the 1951 Convention definition through expanding it to include a broader category of persons. These instruments included significantly the 1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa. While incorporating the existing 1951 Convention refugee definition, the OAU Convention added a paragraph specifying that the term refugee shall also apply to every person who owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. In other words the notion of refugee was broadened beyond victims of persecution to include the increasingly prevalent "new" category of victims of generalised conflict and violence. The OAU Convention was also a significant advance on the 1951 Convention in its recognition of the security implications of refugee flows, in its more specific focus on solutions - particularly on voluntary repatriation, in contrast to the integration bias of the 1951 Convention - and through its promotion of a burden sharing approach to refugee assistance and protection.
The 1970s was in fact a decade of repatriation. Millions of refugees returned home to countries like Angola, Mozambique, Guinea-Bissau or Bangladesh. This period also proved to be an important one in terms of fostering the concepts of international solidarity and burden-sharing in the difficult search for solutions. One of the more important milestones in this regard was the International Conference on Refugees and Displaced Persons in South East Asia, held in 1979 in Geneva. It came at a time when the world was following with grave concern the plight of Vietnamese fleeing their country in flimsy boats, confronting the perils of the sea and pirates, only to be pushed back as they reached the shores of neighbouring countries. A three-way agreement emerged from the Conference: ASEAN countries promised to provide temporary asylum; Viet Nam undertook to promote orderly departures in place of illegal exits; and third countries agreed to accelerate the rate of resettlement. Important burden sharing schemes were subsequently put in place to ensure the continuing rescue at sea of the Vietnamese "boat people". The Comprehensive Plan of Action (CPA) for Indo-Chinese refugees was the first attempt to implicate all concerned parties (countries of asylum, of origin and of resettlement), as well as the donor community in a coordinated, solutions oriented set of arrangements for the sharing of responsibilities as regards a refugee population.
The 1980s and 90s: Restrictions on the international refugee protection regime
In the decades of the 80s and 90s, substantial changes came about in the environment in which international refugee protection had to be realised. These changes not only put basic concepts into question, they also impacted indelibly on both political will and that of local host communities to continue to offer asylum on the generous terms of the past. The numbers of refugees grew exponentially, no longer as a product of colonialism but due to the steep rise in internal inter ethnic conflicts in the newly independent States. The conflicts were fuelled by super-power rivalry and aggravated by socio-economic problems in developing countries, and solutions to refugee problems became even more elusive - whether in Afghanistan, with two and a half million Afghan refugees remaining in exile today, in the Horn of Africa, or Southern Africa. Human rights abuses and breaches of humanitarian law were no longer by-products of war, but often a conscious objective of military strategy, so that even low levels of conflict generated a disproportionately high degree of suffering among civilians and massive displacement. To give some examples, 2.5 million people were displaced or fled to Iran from Northern Iraq in 1991; in former Yugoslavia, the number of refugees, displaced and others assisted by UNHCR exceeded 4 million; and the Great Lakes crisis of 1994 forced 3 million people to flee their countries. With the prospects of lasting political solutions to refugee-producing conflicts ever more distant, UNHCR had little option but to embark on prolonged aid programmes for millions of refugees in overcrowded camps. And the refugee population steadily increased from a few million in the mid-1970s to some ten million by the late 1980s. In 1995 the number of persons needing assistance rocketed to around 25 million.
Asylum countries became ever more worried about receiving large numbers of refugees without a possibility of early repatriation. Large-scale refugee flows increasingly were perceived as a threat to political, economic and social stability, and in traditionally hospitable asylum countries, were starting to provoke hostility, violence, physical attack and rape of refugees. Governments resorted to closure of borders or pushing refugees back to danger, even death. Guinea closing its borders to the Sierra Leonean refugees, many of whom were women and children who had had limbs amputated by machete wielding rebel forces, was a graphically horrible manifestation.
The "voluntariness" aspect of solutions inevitably, also, assumed quite a relative place. Refugees returned to countries emerging from long-drawn out war, where peace was fragile, infrastructure weak, the human rights situation not yet stabilized, and the basic necessities of life in uncertain supply. The factor precipitating return often was not durable change at home, but inhospitable, even hostile, conditions in the host country, making return the lesser of the evils. In some cases, rapid outflows were followed by equally sudden and large-scale return of people to their country, from which they were compelled to depart again to exile within a short period.
In the developed world with sophisticated asylum systems and a long tradition of active political support for refugee protection, the changes were no less significant. There has been, particularly over recent years, a major re-shaping of asylum policies, provoked by a shared concern in the industrialized countries about over-burdening of the structures they have in place to handle claims, about rising costs of various types associated with running their systems, about problems stemming from difficulties in applying refugee concepts to mixed groups of arrivals and by a significant misuse of the systems. Trafficking, or human smuggling, has been a compounding feature. Increasingly, being smuggled to sanctuary has become an important option for asylum-seekers, but one which carries a price tag. An asylum-seeker who has resorted to a trafficker has seriously compromised his or her claim in the eyes of many States, and has had, as a result, to face a sort of double criminality: not only has the person flouted national borders, but he or she has consorted with criminal trafficking gangs to do so, to the point where the claim in question has become tainted and measures which restrict elementary privileges have been seen as more than justified.
There has been a slow but steady growth in processes, laws and concepts whose compatibility with the prevailing protection framework is ever more tenuous. Some States have reverted to an overly restrictive application of the 1951 Convention and its 1967 Protocol, coupled with the erection of a formidable range of obstacles to prevent legal and physical access to territory. This has been accompanied by the growth of a bewildering myriad of alternative protection regimes of more limited duration and guaranteeing lesser rights when compared to those of the 1951 Convention. Increased detention, reduced welfare benefits and severe curtailment of self-sufficiency possibilities, coupled with restricted family reunion rights, have all been manifestations of this trend.
The realities and the way ahead for the international refugee protection regime
Taking stock of where we have come from, UNHCR's perception is that refugee protection is at a crossroads. Its most important tool - the 1951 Convention - sets out a basic framework which remains directly relevant to many, but not to all, displacement situations. Concerns about the Convention for what it does not address have led some States to go so far as to question its continuing value - and a great many more States increasingly to disregard it or find ways around it, even in situations it directly addresses. Furthermore, alliances on protection are shifting. Some States who were formally devout practitioners are starting to distance themselves from its basics as they seek to redefine their responsibilities in the face of the changed nature of conflicts, ever larger numbers of vulnerable people and a globalized irregular migration movement. Waning public support for refugees and a resurgence of xenophobia have found their political expression, in many countries, in a harder line towards those who come uninvited. This line is often rationalized on the basis of arguments which rest on challengeable assumptions of the following sort:
- The first assumption is that the 1951 Convention is outdated, unworkable, irrelevant, or an unacceptably complicating factor in today's migration environment. The fact, from our perspective, is that the Convention was never conceived of as an instrument of migration control. Its terms impact, it is true, on the sovereign right to regulate entry across borders, but with a view to introducing a needed exception for a clear category of persons. States' inability otherwise to control their borders, or to deport aliens with no valid claim to continued residence on their territories, should not be blamed on the Convention.
- The second assumption is that illegal entry is incompatible in important ways with refugee status. The fact, though, is that refugees have always entered countries illegally - often without proper documents, and with the help of traffickers. None of this detracts from their refugee status - on the contrary, these facts may confirm it. Economic migration is not new - and the attempts by would-be migrants to use asylum channels for entry (in the absence of migration programmes) - do not invalidate the asylum process;
- A third assumption is that unsuccessful asylum-seekers are all bogus. The fact is that a narrow interpretation of the refugee definition is applied by an increasing number of States. Many asylum-seekers who are unsuccessful are the victims of this restrictive interpretation, which incidentally is not so applied in the South.
The Refugee Convention is 50 years old but not outdated - human rights principles are not weakened by age. UNHCR has decided to take the opportunity of the forthcoming 50th Anniversary of the 1951 Convention to initiate a process of open dialogue or Global Consultations with governments, NGOs and refugee experts with a view to revitalizing the Convention regime. Our purpose is both to preserve its centrality, and to buttress it by harmonized additional protections.
We have a working frame for these consultations, in the form of three circles. The first circle should be taken as representing the basic, globally agreed framework principles of the 1951 Convention. We hope that the 50th Anniversary of the Convention will be the opportunity for States parties unequivocally to reaffirm their commitment to full and effective implementation of the Convention and to examine ways in which this might be strengthened through better supervisory mechanisms. Ideally, a first ever meeting of States parties next year would serve as the occasion for this process.
In the next circle of issues we have placed open interpretative questions regarding the Convention. Our interest here is in examining how and in what directions the law has developed over recent years, that is in a stock taking exercise which would allow decision-makers to be better informed about how the Convention is being understood and applied today. We will be organizing round tables of experts, informed by background papers on topics such as the interpretation of the cessation and exclusion provisions, membership of a particular social group ground, and gender related persecution. We also want to look at the non-refoulement, non-expulsion, and non penalization for illegal entry provisions of the Convention. We hope to publish the papers, together with the conclusions resulting from the discussions, as a contribution to the 50th Anniversary.
Finally, in the third circle, there are the gaps - the situations the Convention does not adequately, or at all, cover. Examination of these issues, which will take place within the framework of UNHCR's Executive Committee, will be structured around these main challenges for UNHCR: protection of refugees in mass influx situations, protection of refugees through individual asylum systems, including the problems inherent in the migration/asylum interface, and realization of protection-based durable solutions. The overarching theme that has to run through the entire process is responsibility sharing, based on international cooperation and solidarity. We hope that the process will serve to better define the problems, as well as to identify new approaches, tools or guidelines.
This is not an exercise without dangers. Some refugee advocates fear that if we put the Convention in any way into discussion, we may end up provoking a consensus around a protection regime of much more limited rights. We acknowledge the dangers but do not see it quite this way. Refugee protection is confronted by a number of major challenges which could well overtake the existing protection principles unless we act to secure their enduring place. We have to contend with a worrying level of disillusionment about aspects of the 1951 Convention; with a deteriorating quality of asylum world-wide; with hundreds of thousands of refugees without access to timely or safe solutions; with less reliable partners for our traditional protection activities; with more concerted efforts now, than in the past, to regionalize responsibilities and give them a particular understanding not always consistent with international approaches; as well as with a protection system generally with gaps and strains starting now to materialize.
If the evolution of the international refugee protection regime as outlined earlier highlights anything, it is that refugee protection is and must remain not a static but a dynamic and action-oriented function. Defining the future agenda for protection, which is the overall aim of the consultations, must be firmly grounded in consensus around the fact that refugee protection is first and foremost about meeting the needs of vulnerable and threatened individuals, not those of States. To be effective, though, it must also take into account the exigencies of the environment in which protection must be delivered, which include the legitimate concerns of States. Leadership in defining the protection agenda is being called for. To fail to appreciate this would be an abrogation of responsibility on our part. It would also be a seriously missed opportunity.