21st Berlin Conference on Refugee Rights, 21 June 2021, Speech by Assistant High Commissioner for Protection Ms Gillian Triggs

21st Berlin Conference on Refugee Rights, 21 June 2021

I am pleased to be part of this 21^st Berlin Conference on Refugee Rights under the topic:

70th Anniversary of the 1951 Refugee Convention – more relevant than ever

I do believe the Convention has enduring value, and indeed, as Covid-19 has shown us, its core principles are more relevant than ever. I will speak about the principle of:

Non-Refoulement: as a core principle of the Convention that establishes a non-derogable obligation on States, never to return a refugee to a place of persecution or violence.

While I will discuss today’s unprecedented challenges posed to the normative values of the Refugee Convention, I would like to begin at the beginning.

In 1951, the founding nations of the Refugee Convention were concerned to protect about 2m people who remained displaced and without protection 6 years after the Second World War. Today, as we celebrate the 70^th anniversary, the High Commissioner reported some 82.4 million refugees and people who are displaced in their own countries, plus unknown millions of those who are stateless. Over the last 10 years, the number of those forcibly displaced has doubled reflecting well known root causes, violence intercommunal conflict, environmental degradation, poverty and inability to find livelihoods, inequality, especially for women and girls, discrimination and natural disasters and climate change.

The Convention and its 1967 Protocol defines who is a refugee and sets out the protection, assistance and social rights a refugee is entitled to receive: for its time a breakthrough agreement in recognizing social and economic rights of refugees. And the need for international cooperation to ease the unequal burden on host nations. The Convention rests on two key principles:

• the right of everyone to seek and enjoy asylum and
• the absolute prohibition on returning a refugee

Today, 149 States are party to either the 1951 Convention, its 1967 Protocol, or both, reflecting a global consensus on these humanitarian value that now have customary law status and are binding on all nations.

The 70^th anniversary of the Refugee Convention is a time for reflection. What has the Convention achieved and is it able to respond effectively to the contemporary needs of those forcibly displaced face today and will do tomorrow?

First, it is undoubted that commitments to the Convention have saved millions of lives over the last 70 years and even in this time of Covid-19. There are currently 26.4 million registered refugees hosted in countries around the world, testament to those governments that have endorsed the Convention, both in word and deed. Despite the need for measures to protect public health, most states have ensured that their borders are open to asylum seekers, providing them with protection and adopting digital technologies to ensure asylum processing.

The Refugee Convention has also inspired regional agreements such as the 1969 Organization of Africa Union Refugee Convention, the 1984 Cartagena Declaration for Latin America and the common asylum system for the European Union.

These are the successes of the Refugee Convention, but my second question is whether the Refugee Convention is capable of responding to contemporary and future challenges?

While recognizing its enduring value, the Refugee Convention faces significant challenges to its fundamental norms and effectiveness:

• Nearly 90% of refugees are hosted by poor or developing neighbouring countries, typically in the global South, while relatively small and manageable numbers find their way to Europe and other safe havens – only 15 per cent of refugee flows are to industrialized nations.
• Many refugee determination processes are weak, resulting in backlogs over many years, placing asylum seekers in a legal vacuum in which it is hard to be included meaningfully in their host communities.
• Those asylum seekers found not to be in need of international protection all too often cannot be returned to their country of origin, undermining the integrity of the asylum regime.
• Many political leaders conflate migrants with asylum seekers and refugees for political gain.
• Some countries attempt to transfer their protection obligations to other, usually poorer nations and isolated islands, detaining asylum seekers in poor conditions, indefinitely and arbitrarily.
• Changed realities for solutions: Covid-19 has reduced the opportunities for resettlement, so that in 2020, fewer than 23,000 were submitted by UNHCR for resettlement, though with the US commitments this number is expected to rise for 2021. From 2019 to 2020 there was also a 45% decrease in new asylum applications– the single biggest drop in over 20 years.
• As many conflicts are protracted, seemingly irresolvable, voluntary returns to safety are virtually impossible. (Afghanistan, Syria, Myanmar, Sahel, DRC – and new conflicts – Tigray in Ethiopia, Mozambique).
• Many states are using Covid-19, economic challenges, and irregular arrivals of migrants as cover for disproportionate measures restricting access to asylum and to the rights protected by the Refugee Convention such as the right to livelihood and freedom of movement. At the height of the pandemic, 165 countries closed their borders and 99 denied access to asylum processes. Today 55 or so continue to refuse any access to territory to claim asylum.
• Covid-19 has had a disproportionate impact on those forcibly displaced and stateless. They are especially vulnerable to loss of work, denial of access to social safety nets or health services.

With these contemporary challenges I now return to the principle of non-refoulement.

Refugee law and UNHCR’s protection work is built upon the principle of non-refoulement, a principle that has enjoyed almost unanimous international adherence over the past 70 years and saved millions of lives.  Today, this principle is under serious threat.

The principle of non-refoulement constitutes the cornerstone of international refugee protection and is also enshrined in international refugee, human rights, humanitarian and customary law.

Non-refoulement was codified in the Refugee Convention but over the past decades, it has also been included in other, subsequent human rights treaties and in regional human rights instruments.

For example:

• An explicit non-refoulement provision is contained in the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This prohibits the removal of a person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
• Obligations under the 1966 Covenant on Civil and Political Rights, as interpreted by the Human Rights Committee, also encompass the obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as the right to life and the right to be free from torture or other cruel, inhuman or degrading treatment or punishment.
• The prohibition of refoulement to a risk of serious human rights violations, particularly torture and other forms of ill-treatment, is also firmly established under regional human rights treaties.
• Over the past year, UNHCR has observed numerous violations of the principle of non-refoulement. In different parts of the world, increased and often violent pushbacks at borders and interceptions at sea have been reported, including in circumstances that have resulted in return to persecution or serious human rights violations. These states will insist that they respect the principle of non-refoulement but we have credible hard evidence to the contrary.
• Some countries have even denied disembarkation of asylum seeker boats in the Mediterranean, Andean sea and Bay of Bengal, rejecting centuries of maritime tradition of rescue at sea.  

Pushbacks at borders, the denial of disembarkation for boats carrying asylum seekers and proposals for the externalization and outsourcing of asylum obligations to other countries pose critical blows to the preservation of the entire global refugee system, undermining the commitment by Member States to share responsibility under the Global Compact on Refugees.

These developments have the potential to undermine the international protection regime; a sobering observation in this 70^th year since the 1951 Convention was adopted, during which it has ensured protection for so many refugees.

While we have advocated and warned since the beginning of the pandemic of the threats and erosions to refugee protection, we have also witnessed exemplary, best practice.

Many states have found ways to preserve some form of access to territory and asylum for people seeking international protection. At the height of the pandemic, 111 countries found pragmatic solutions to ensure their asylum systems were fully or partially operational while ensuring necessary measures were taken to curb the spread of the virus. Others ensured refugees, displaced and stateless people were included at the onset in pandemic prevention and response plans, from health, vaccines to social protection schemes.

Externalization

We are aware that some governments are considering moves to deter movements and restrict entry for refugees, from externalizing / outsourcing their asylum processing to countries in the global south, to removing protection status for refugees.

UNHCR has expressed concern about proposals which have the potential to significantly undermine the international protection system, aiming at externalizing responsibility for refugee protection or restricting access to people seeking to enter and claim asylum. We have made our concerns very clear on all these issues – they undermine the Refugee Convention, and the obligation to protect refugees.

Access to asylum needs to be provided by all States as a core international obligation and an important demonstration of international solidarity and responsibility-sharing. In light of the high displacement figures globally, there is exigency for States to work together through regional and global responses to address the important challenges posed by forced displacement in a predictable and equitable manner. Steps that do not share but shift responsibilities to countries and regions already hosting the vast majority of forcibly displaced people runs counter to international cooperation and solidarity.

As UNHCR has seen in several contexts, externalization often results in the forced transfer of people to other countries with inadequate protection safeguards and resources. Externalization can lead to indefinite ‘ware-housing’ of asylum-seekers in isolated places where they are ‘out of sight and out of mind’, exposing them to danger and chain refoulement. Externalization may also de-humanize asylum-seekers and label people in need of international protection as unwanted.

As reflected in international law and reiterated in a number of UNHCR positions, the primary responsibility for identifying and assessing international protection needs, ensuring appropriate reception conditions and procedural standards during status determination, and providing international protection, rests with the State in which an asylum-seeker arrives and seeks that protection.

States have a duty to make independent inquiries as to the need for international protection of persons seeking asylum, a duty recognized by a wide range of national and regional courts, and provide asylum-seekers access to fair and efficient asylum procedures. The foundations of international refugee law, such as the principle of non-refoulement, the right to seek asylum, a fair and efficient asylum procedure for the assessment of asylum claims, access to rights and services and durable solutions are non-negotiable.

Best Practices

2020 has presented a mixed picture in terms of practices and policies towards refugees. While we have advocated and warned since the beginning of the pandemic of the threats and erosions to refugee protection, we have also witnessed exemplary, best practice:

• Uganda, host to 1.4 million refugees, opened its borders and accepted thousands of refugees fleeing violence in the DRC;
• Two-thirds of European countries found ways to manage their borders while enabling access to asylum seekers;
• Colombia provided ten-year temporary protection status to displaced Venezuelans;
• Chad – one of Africa’s largest refugee host countries – adopted an asylum law which confers refugees with fundamental protections including the right to work, to access health care, education and justice; and
• Nepal, Jordan and Rwanda among many others, ensured refugees also received Covid-19 vaccines.

Inclusion, international solidarity and cooperation

Refugees, displaced and stateless people’s full inclusion is urgently required to mitigate the deleterious effects of the Covid-19 pandemic. Inclusion must extend beyond health responses but also in protection and socio-economic responses, education systems and employment markets, given the unprecedented consequences and legacy this crisis will have on the lives, livelihoods and social fabric of societies. Full inclusion will help protect refugees and their host societies and boost their resilience and recovery. It is not in the interest of any community, state or for the world at large to have people falling through the cracks, marginalized, exposed and unprotected.

Can the Refugee Convention respond to these serious challenges?

The Covid-19 pandemic has shown, as almost no other crisis can, the vital importance of collective, concrete efforts to protect the most vulnerable and to grant these rights to the fullest.

An answer to the question lies in the Global Compact on Refugees accepted by the overwhelming majority – 181 – of nations in 2018. The Compact is a break-through. It is a legally non-binding, readily accessible document, written in plain English, under which States agree they will share equitably the responsibility for refugees and those forcibly displaced. In addition to States, the wider international community, civil society, NGOs, the private sector, parliamentarians, faith groups, scholars and city mayors are now committed to the objectives of the Compact to support host nations and enable refugees to be self-sufficient in the countries in which they have found refuge.

These are more than abstract ideals. They are to be implemented through the more than 1,400 pledges made by governments and civil society and other stakeholders at the first Global Refugee Forum in 2019. Their impact will be assessed by evidence and data. This December we will hold the High-Level Officials Meeting in Geneva to take stock of progress in implementing the pledges, and to plan for the next Global Refugee Forum in 2023.

The Compact builds on the core principles of the ‘51 Refugee Convention and provides concrete measures to turn words into practice:

• The Covid-19 pandemic has taught us many lessons. One is that pandemics have no respect for legal status. Refugees must now be included in national health care and have access to vaccines, to work, education, and social safety nets. Covid-19 will leave a socio-economic legacy that is likely to continue to have a disproportionate effect on the most vulnerable, especially those forcibly displaced from their homes.
• A priority for the future, maybe the no. 1 priority – will be the impact of climate change and natural disasters on the mass displacement of people as an exacerbating factor driving them from their lands to seek better pastures, water and food. Many will flee across national borders and seek protection in other countries. There may be situations where the definition of refugee under the 1951 Convention could apply. People may have a valid claim for refugee status, for example, where the adverse effects of climate change interact with armed conflict and violence.  

In addition to the Global Compact on Refugees is the proposed EU Pact on Migration and Asylum that presents an opportunity for concerted regional and global action rather than unilateral initiatives that push the challenges posed by refugees onto others. The Pact calls for European solidarity, part of the focus of our conference, today.

We hope, over time, the Compact on Refugees, grounded in the ‘51 Refugee Convention, will promote equitable responsibility-sharing globally and reenergize the long honoured right to claim asylum, and, to have non-discriminatory access to livelihoods, freedom of movement and, ultimately, to durable solutions for refugees.

May I conclude by observing that the most effective way to ensure refugee protection lies in ensuring that nations and the international community respect and implement both the Compact and the ‘51 Convention in practice.  

Germany has been a leader in refugee protection for many years and we hope that it will continue to make its voice heard at the European level and globally to promote solidarity, fair treatment, upholding of standards and the recognition of all these rights – in short, Protection.

Thank you.