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A 'Timeless' Treaty Under Attack

A 'Timeless' Treaty Under Attack

1 June 2001

In the aftermath of World War Two, as hundreds of thousands of uprooted peoples wandered aimlessly across devastated landscapes, 26 nations met in Geneva to try to help these and future refugees.

The resultant 1951 Convention relating to the Status of Refugees subsequently helped millions of civilians to rebuild their lives and has become "the wall behind which refugees can shelter," says Erika Feller, director of the United Nations High Commissioner for Refugees (UNHCR).

But on its 50th anniversary the Convention is coming apart at the seams,according to critics. Crises such as Kosovo have multiplied. Intercontinental travel has become easy and a burgeoning business in human trafficking has swelled the number of illegal immigrants. States say their asylum systems are being overwhelmed with this tangled mass of refugees and economic migrants. The Convention, they say, is outdated, unworkable and irrelevant.

The treaty's "values are timeless," British Prime Minister Tony Blair insisted recently. But he added that "with vastly increasing economic migration around the world and most especially in Europe, there is an obvious need to set proper rules and procedures.

High Commissioner Ruud Lubbers, a former Dutch Prime Minister, has warned, however, that "many prosperous countries with strong economies complain about the large number of asylum seekers, but offer too little to prevent refugee crises, like investing in conflict prevention, return, reintegration."

In this uncertain atmosphere, UNHCR has launched a series of meetings or 'global consultations' with the 140 countries that have acceded to the original instrument and a subsequent Protocol, and other interested parties to discuss the future of refugee protection.

Developing protection

A body of refugee law first began to take root in the early 20th century. The 1933 League of Nations' Convention relating to the International Status of Refugees and the 1938 Convention concerning the Status of Refugees coming from Germany provided limited protection for uprooted peoples.

But legal protection remained rudimentary and when the United Nations was formed to "save succeeding generations from the scourge of war", the body determined that a stronger refugee regime was necessary.

UNHCR was created in 1950 and the following year the Refugee Convention, the major legal foundation on which UNHCR's work is based, was adopted.

The document was a compromise of national interests and "The modern system of refugee rights was ... conceived out of enlightened self-interest," according to James C. Hathaway, professor of law and director of the Program in Refugee and Asylum Law at the University of Michigan.

The three-week conference ended on 25 July 1951 and the Convention was formally adopted three days later, but much hard work still lay ahead. There was interminable fine tuning and hard bargaining.

As late as 1959, UNHCR's representative in Greece cabled Geneva in despair: "I doubt whether I have ever in my life asked so many times the most different persons for one and the same thing as I have pressed in Greece for the ratification of the Convention. Still the prospects are not brilliant."

Despite the hiccups and hesitations, in December 1952, Denmark became the first country to ratify the Convention. After five additional states - Norway, Belgium, Luxembourg, the Federal Republic of Germany and Australia - had also acceded, the Convention officially came into force on 22 April 1954.

For the first time, there was a global instrument that represented a major improvement on pre-World-War-II treaties and advanced international law in several important ways.

The 1951 Convention contains a more general definition of the term refugee and it accords them a broader range of rights.

Influenced by the 1933 Refugee Convention and the 1948 Universal Declaration of Human Rights, the 1951 instrument allows refugees the freedom to practice religion and provide religious education to their children, access to courts, elementary education and public assistance. In the field of housing and jobs, a refugee should be treated at least as favourably as other nationals of a foreign country.

Conversely, the Convention also spelled out the obligations of refugees toward host countries.

The instrument stipulated who is not covered by its provisions in its 'exclusion clause' (people who commit war crimes, for instance) and when the Convention ceases to apply in its cessation clauses.

For the first time it created a formal link between the treaty and an international agency, UNHCR, which was given authority to supervise its application.

A new phase

The original framers had not expected refugee issues to be a major international problem for very long.

UNHCR had been given a limited three-year mandate to help the post-World War II refugees and then, it was hoped, go out of business. Instead, the refugee crisis spread, from Europe in the 1950s to Africa in the 1960s and then to Asia and by the 1990s back to Europe.

The Convention obviously needed strengthening to remain relevant for these new waves of exiles. In 1967 the U.N. General Assembly adopted the Protocol relating to the Status of Refugees, which effectively removed earlier time and geographical restrictions contained in the 1951 Convention.

This was only one response as refugee problems became more complex and as the number of people seeking safety swelled from less than one million to a high of more than 27 million in 1995.

In one innovative approach, some countries adopted 'temporary protection' arrangements allowing large influxes of civilians rapidly, but giving them fewer and less generous rights than those provided for under the Convention.

There were also negative developments. Some countries began to close their doors to the needy and the term 'Fortress Europe' was coined.

Inevitably, the Convention came under closer scrutiny and convoluted legal arguments were formulated to try to stem the flow of asylum seekers when politically expedient.

Some states argued that the Convention only applies to individuals (" ... the term 'refugee' shall apply to any person who ... "); therefore,the Convention does not apply to large groups of people seeking asylum. Jurists counter that nothing in the definition implies that it refers only to individuals and underline that when the Convention was drafted, its intended beneficiaries were, in fact, large groups of people displaced by World War II.

The Convention's provisions present a complex legal challenge. While some articles are absolute, many are flexible enough to allow the treaty to live and evolve, through interpretation, as times and circumstances change.

Equally, the Convention's silence on a number of issues, including asylum, gender and burden-sharing, has ignited heated debate in recent years among governments, legal scholars and UNHCR.

Although the Universal Declaration of Human Rights asserts the right of persons to seek and enjoy asylum, the Convention makes no mention of such a right, nor of any obligation on countries to admit asylum seekers.

But states are obliged not to impose penalties on people who do not have proper documentation as long as "they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

The only reference to states' responsibilities in admitting refugees appears in the drafters' Final Act which recommend "that Governments continue to receive refugees in their territories and ... in order that these refugees may find asylum and the possibility of resettlement."

Gender violence

The Convention doesn't mention gender, but there is growing recognition that gender-related violence under certain circumstances falls within the refugee definition.

While the Convention does not tackle the issue of refugee 'burden sharing' among states, though this issue has become one of the most contentious among receiving countries.

The problem of an estimated 20-25 million 'internally displaced persons' - people displaced by war and generalized violence but who remain within their home countries - demands urgent action.

Although they may have fled their homes for the same reasons as the world's 12 million refugees, because they have not crossed an international border, they still, at least in theory, enjoy the legal protection of their governments and so are not covered by the Refugee Convention.

Reconsidering the Convention

British Prime Minister Blair said it was now time to "stand back and consider its [the Convention's] applications in today's world." British policy in future, he said, would be "asylum for those who qualify under the rules, fast action to deal with those who don't."

Australian Minister for Immigration and Multicultural Affairs Philip Ruddock has become an outspoken critic both of the Convention and UNHCR. The agency, he said recently, "spends cents a day looking after people in Africa and we spend tens of thousands of dollars on people in developed countries who have been free enough to travel and had the money to engage people smugglers."

Lawmakers from Washington to Berlin worried that the Convention was a convenient screen behind which everyone from terrorists to dope dealers could hide. Humanitarian lawyers insist that existing provisions are strong and flexible enough to meet these challenges and already exclude such categories of persons.

Many of the arguments made by critics also miss or disregard a fundamental fact: the Convention was never intended to be a migration-control instrument.

"The problem of migration has to be addressed in tandem with the refugee problem, but using different tools," says Feller,director of UNHCR's Department of International Protection. "The Convention can't be held responsible for failing to deal with situations it was never designed to address."

"You cannot interpret international law as though it is domestic legislation. It is in one sense an instrument of compromise, drafted by diplomats. The basis of the Convention is timeless," says Feller.

Making protection work

UNHCR recently launched its global consultations with governments, legal scholars, non-governmental organizations and refugees themselves to help reaffirm the commitment of governments to the Convention, at the same time examining key protection concerns not explicitly addressed in the 1951 instrument.

"The objectives of the consultations are to promote a common understanding of protection dilemmas, improve cooperation in dealing with them, and generate new approaches tailored to changed demands and circumstances," said Feller.

The meetings will extend into 2002 and are organized along three so-called 'tracks'. The 'first-track' discussions in December in Switzerland will adopt a declaration intended to commit signatories to the full and effective implementation of the Convention and its Protocol.

These 'second-track' talks will focus on such issues as exclusion and cessation, non-refoulement, family unity, the Convention's refugee definition and the question of illegal entry into an asylum state.

'Third-track' discussions will be held within the framework of UNHCR's Executive Committee at specially organized sessions examining such themes as protection of refugees in mass influx situations, protection of refugees in individual asylum systems, protection-based solutions to the problems of refugees, and protection of refugee women and children.

The intended outcome of these discussions varies, from achieving a clearer consensus on how to approach some of these problems to setting international standards.

Much has changed over the past 50 years. The world is more complex than it was in 1951; people are more mobile; shades of gray elude categorization where once black-and-white fit neatly into hard-won definitions. Humanitarianism has seemingly been replaced by hard-nosed pragmatism, empathy by suspicion.

But one thing has not changed: people are still forced to flee persecution, war and human rights violations and to seek refuge in other countries. For refugees, now as half a century ago, the 1951 Convention is the one truly universal, humanitarian treaty that offers some guarantee their rights as human beings will be safeguarded.