Statement by Mr. Jean-Pierre Hocké, United Nations High Commissioner for Refugees, at the Seminar on International Humanitarian Law in the Contemporary World, Moscow, 4-6 June 1987

Distinguished Participants, Friends, Ladies and Gentlemen,

In spite of all texts and statements, the world refugee problem has increased in both scope and complexity. There are today some 12 million refugees spread all over the world, not counting the considerable number of Palestinian refugees who are assisted by a separate organization of the United Nations system. No region is spared the agony of the tragic movements of men, women and children fleeing their countries in search of protection and assistance. In fact, with the ease of modern travel, larger numbers of refugees and asylum-seekers move spontaneously from one country to anther; from one continent to another.

In the not too distant past, most refugees had the opportunity to be integrated and become useful and productive members of their host societies. Today's refugees often find themselves confined in over-crowded refugee camps and settlements. For far too many persons, to be a refugee has become a permanent state of affairs; this despite the fact that the efforts of the international community on behalf of refugees has always been aimed at finding a durable solution for them whereby they become integrated into a new, or their old, society.

Some eighty percent of the refugees today are found in the developing countries. Because of their population pressures and economic difficulties these countries are possibly the least able to shoulder this additional burden. It is therefore of particular importance for them and for my Office that the international community as a whole share in finding solutions for these refugees based on the principle of international solidarity.

It is therefore particularly worrisome to note a weakening in the international solidarity to protect and assist refugees. In some regions of the world, xenophobic trends have emerged and restrictive measures have been introduced in a growing number of States - particularly some industrialized and richer States which by definition are in a better position to assist refugees. International solidarity is at the core of refugee protection and assistance and must be maintained and strengthened further. To this end, there is a clear need for a new approach. In my statement today I wish to outline in a few words the components of such an approach.

First of all, there is a need to reach an agreement on the category of persons who are entitled to protection and assistance as refugees wherever they may be located. Traditionally, the refugee concept is predicated on the humanitarian need for international protection of a certain category of persons who have left their countries of origin. This need, which derives from the universally accepted principle of humanity, has been recognized by the international community throughout this century, although the definition of the persons concerned - the refugees - has varied. During the early part of this century, refugees were defined in relation to the countries from which they came. This approach was changed in the period following the second world war and the definition was adopted which is contained in UNHCR's Statute and, with a slight modification, in the 1951 Convention Relating to the Status of Refugees.

As you know, these texts define a refugee as a person who has a well-founded fear of persecution for reasons of race, religion, nationality or political opinion. Determining the refugee status of individuals under this definition requires establishing both objective and subjective elements of the claim and is sometimes fraught with considerable difficulties.

It was soon apparent, however, that this definition could not easily apply in emerging new situations involving persons who have an equally valid humanitarian need of international protection - those I call victims of violence. This first became apparent on the African continent during the decolonization period. When the member States of the Organization of African Unity (OAU) met in the 1960s to draft a Convention governing the specific aspects of the refugee problems in Africa they sought to take this reality into account. As a result, the 1969 OAU Convention contains the very important proviso that the term refugee shall also apply to every person who is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality as a result of external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country.

A similar reasoning has at times also been applied by the United Nations General Assembly which, when faced with particular situations involving mass outflow of persons, has requested my Office to extend to these persons our protection and assistance. A number of States have individually introduced legislation or administrative practices which permit granting a status to certain persons fleeing violence similar to the one extended to refugees recognized under the 1951 Convention also.

When governmental delegates from ten Latin American countries met in Cartagena, Colombia, in 1984 to discuss the situation of refugees in Central America they pointed out the inadequacy of the definition contained the 1951 Convention. As a result, they recommended that States apply a definition in the region which included also persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.

In spite of these developments, there is still today no universally accepted definition of the word refugee which takes into account the emerging refugee situations I have previously referred to. This is no doubt partly due to the fact that the current flow of refugees takes place in the context of an increase in general migratory flows. These do not only encompass the refugees - however we define them - but also economic migrants. These latter are partly a consequence of population pressures and poverty in the South and result in movements towards the richer and more scarcely populated north. Although these persons are clearly not refugees in need of protection, they cannot and should not be ignored by the international community. To the extent that States are not willing to face these migratory flows, they must be willing to share their resources with the South whether through development assistance or other mechanisms. It is however of crucial importance that such manifestations of solidarity take place since avoiding to deal with the problem will undermine further international efforts to protect and assist refugees.

In view of what I have just stated, there is a clear need to reach an international agreement on the category of persons who are entitled to protection and assistance as refugees. In my view such a definition should take into account the present realities and be based on the principle that the interest of the refugee or asylum-seeker should take precedence over the possible conflicting interests of States. In so doing, States will discover that they can also safeguard their true political interests. The definition itself should logically cover not only those who traditionally have been considered as refugees but also certain victims of violence - those who heave their countries because of danger to their lives and security emanating from armed conflicts or other forms of violence or danger.

A second element of a adequate and impossible approach to solving today's refugee problem should in my view consist in adopting act of principles and rule may be of refugee situations and the problems of refugees and their rights. Treaty standards for the treatment of refugees are contained in the 1951 Refugee Convention, its 1967 Protocol and in the 1969 OAU Convention. They deal with the duties and rights of refugees - particularly economic and social rights. They do, however, not deal with the basic issue of asylum except in so far as they state in the context of protection against refoulement that refugees should not be sent back in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened.

With such a set of principles and rules I am not suggesting that the international community again attempt to draft a Convention on territorial asylum. A Code of Conduct should reflect the humanitarian duty of States to protect and assist a particular category of persons - the refugees - and should contain basic and minimum principles and rules which derive from what is in the best interest of refugees and asylum-seekers and which are required for their successful protection and assistance. These, in my view, consist in a re-affirmation of the principle of non-refoulement and the right to admission. They should also include a right to temporary asylum until such time as a durable solution can be identified either through integration into another country or through voluntary repatriation to the person's country of origin. Respect for this latter principle is already being ensured in practice in many parts of the world. Moreover, a Code of Conduct should provide for a minimum humane treatment of the refugees which is compatible with the universally accepted norms of human rights. Finally, or perhaps firstly, in recognition of the fact that the contemporary refugee problem is the concern of all States of the international community, the Code should uphold the principles of international solidarity and the duty of all States to participate in providing solutions to refugees.

A third component of a new approach would be to explore regional solutions. Although the refugee problem is universal in scope and the shared responsibility of all States requiring global solutions, there is also room for regional approaches. This has most amply been demonstrated in Africa and Central America where States through a process of consultations and mutual support have tried to find solutions which takes into account the realities of the region concerned. Such an approach could usefully be pursued also in other parts of the world.

Finally, I wish to argue the case for a political effort of States to address themselves to the root causes of a refugee problem. There are today hundreds of thousands of refugees who have been refugees for many years, some for as long as two decades; the Palestinians for much longer. In some situations, a refugee flow have continued unabated for many years with no prospect in sight for a reversal. It is particularly in these situations that in my view States have a clear humanitarian obligation to assist in promoting a general improvement in the situation in the country of origin. This could subsequently lead to creating the necessary conditions for the voluntary return of refugees which after all is the prefered solution in any refugee situation which permits its application. Given the sheer magnitude of some of today's refugee situations it is also often the only practical solution. In this respect UNHCR's manifold activities in providing protection and assistance to refugee, should also be seen as mooed but determined efforts towards in proving regional security and universal peace.

Within a brief intervention such as the one I have just made it is obviously not possible to provide an exhaustive analysis of the current world refugee situation. I believe however that even within this short space of time it has been possible to show that this problem has by now reached such proportions that there is a clear need for adopting a new approach. Any new approach clearly calls for a large variety of measures and to be successful requires to be applied in a co-ordinated manner. Without claiming to be exhaustive, I have chosen to underline what I consider to be four fundamental aspects of such an approach.

Firstly, to reach agreement on the definition of the term refugee which, in recognition of their humanitarian need, takes into account the majority of today's refugees - the victims of violence. Secondly, to adopt a Code of Conduct which reaffirms the principle of international solidarity and the imperative need for all States in the world community to participate in providing durable solutions to the refugees. Such a code should also reflect basic standards for treatment of refugees including respect for the principle of non-refoulement, the right to admission and at least temporary asylum pending a durable solution. Thirdly, to explore more vigorously the possibility of identifying regional solutions as a complement to global and universal approaches. Fourthly, and finally, to address the root causes of today's refugee movements in an effort to improve the general situation in the country of origin and eventually to permit the voluntary return of the refugees.