Address by Ms. Erika Feller, Director, Department of International Protection, UNHCR, at the colloquium on " Switzerland and the International Protection of Refugees" organised by the Graduate Institute of International Studies (Geneva, 3 November 2000)
Mr. Chairman, Ladies and Gentlemen,
It is a great pleasure to address this colloquium organised by the Graduate Institute of International Studies. It takes place on the eve of the celebration of the 50th anniversary of UNHCR, the formal part of which is scheduled for 14 December 2000 in Geneva. My thanks go in particular to Professor Gowlland for this initiative, which no doubt will prove the occasion for stimulating discussion around Switzerland's contribution to the international protection of refugees - a contribution which, let me say from the beginning, is considerable and much appreciated by UNHCR.
I want to look, in the time available, at some aspects of the changing environment in which protection has to be carried out, and its impact on States' policies and UNHCR's responsibilities. Against this background, I will draw attention to innovative aspects of Switzerland practice, which have actively contributed to the better protection of refugees, while at the same time offering some reflections on areas where, from our perspective, some advances would now be warranted.
Switzerland has reason to be proud of its record. It is a major asylum country in Europe, and one which, in the Executive Committee, traditionally offers leadership and support for the policies of UNHCR. It also provides both generous financial assistance for the High Commissioner's programmes - Switzerland steadily remains within the top ten donors of UNHCR - and much assistance "in kind", not least to our capacity building activities. Its status determination system has always been something of a model in this regard, aspects of which we have no hesitation in exporting.
UNHCR enjoys a close and co-operative working relationship, both with Switzerland as a State and also, more specifically, with the Federal Office for Refugees. That is not to say we always agree with each other, but the positive aspect here is that there is no hesitation, on either side I venture to say, in bringing up differences of view. I remember one discussion with a senior official in the Federal Office who observed, quite rightly, that UNHCR's protection responsibilities included an obligation on the office to raise its voice unequivocally in defence of refugees, including, as need be, in the public domain. He went on to say, again understandably, that any implicated government, including Switzerland, is likely to respond quite sharply, with consternation and critique, and also in the public domain. That though, he concluded, should not inhibit us, but should be regarded as a sign of a healthy relationship. I much appreciated this observation and the spirit in which it was relayed, not least for what it indicated about the degree of respect in this country for the role of UNHCR as advocate and defender of the rights of a vulnerable group of non-citizens.
This exchange may sound, to some, a self-evident description of how States approach the protection mandate of UNHCR. Not so. As I commented to this year's plenary meeting of our Executive Committee, there is certainly an irony in the fact that protection is both the most promoted in rhetoric and the most disliked in practice of the functions entrusted to the High Commissioner. That it is the office's central responsibility is often repeated and UNHCR is encouraged to give it absolute priority. At the same time, it is the exercise of this responsibility which attracts the greatest suspicion from a number of States and brings the office most often into confrontational situations. Why is there this disjunction between words and deeds? There are, of course, a number of possible explanations. The first clearly is inherent in the nature of protection itself, where it serves as a restraint on the freedom of any State to treat citizens or non citizens at discretion. As a limit on sovereign discretion, its exercise is rarely applauded by those States directly affected, regardless of the correctness of the act. Another explanation lies perhaps not in the way protection is practised, but the framework within which this is carried out. We hear with increasing regularity that the protection regime of which we have been made the guardian no longer exactly fits the problem.
The refugee problematic has undergone considerable change over the last 50 years, since the basic global framework came into existence with the conclusion of the 1951 UN Convention relating to the Status of Refugees. These changes have impacted, fundamentally, both on the practice and on the theory of protection across the globe, not least in major partner states for UNHCR in Europe. The will of European States to continue to offer asylum on the even-handed terms of the past, in full compliance with the letter but, perhaps more important, the spirit, of the Convention, has been eroded by rising costs, migration fraud and misuse of asylum systems, a public backlash with political and social repercussions, and a perception that somehow there is a growing gap between the asylum or protection tools available to States and the problems with which these tools are having to deal.
In addition to impact of these developments, the situation has been both aided and compounded by an important evolution in the approach to understanding the notion of persecution, around which the framework protection principles have traditionally been constructed. Persecution is, of course, an age-old practice. There is no definition of it in the 1951 Convention, which has contributed to quite some divergence in how the notion is applied in different countries. The severity of the act as a main consideration is common to many systems. However the cultural and social context of the commission of the act has proved, in many cases, the decisive factor in refugee status determinations. This is now slowly changing. As tolerance of behaviours traditionally culturally sanctioned starts to diminish, certain acts, [for example some forms of gender violence] are now emerging out of their protective mantle of social acceptability to be recognised for what they are, insidious manifestations of persecution warranting protection through refugee status. In this regard, the refugee protection systems in place in a number of States have been lamentably slow to catch up, with a determination of whether persecution is at issue still being tied, in the final analysis, to issues of cultural and social acceptability.
The interpretation of persecution and the preparedness of States to accept responsibilities for persecuted individuals have also been conditioned by the identity of the persecutors themselves. Today persecution takes place increasingly in a climate of general lawlessness and impunity within rather than between States. For many diverse reasons, ethnic conflicts and inter-community violence are allowed to flourish because central government has collapsed, or lacks the willingness, or simply the ability, to govern effectively. There has been a growth in internal, inter-ethnic conflicts characterized by massive population displacements which are not their unintended result, but their actual objective. The victims, unable to find effective relief from serious harm within their own countries, are obliged to claim protection beyond the borders of their State. The perpetrators of this harm and violence range from the traditional agents of the state - such as police and the military - to militia, paramilitary groups, separatist rebels, bandits and even thugs. But the victims remain the same people - predominantly children, women, and the elderly. In this environment, perhaps the greatest impediment to a "victim oriented" or "protection based" approach to refugee protection is the notion adhered to by some states - and here I am constrained to mention Switzerland among them - that only those who are victims of actual persecution at the hands of the state or a state like authority, are legally entitled to international refugee protection. I want to return to this position in a minute. My purpose in mentioning it here is to underline the point that the changes that have taken place over recent times in the environment generating refugees, if they have opened up important possibilities, have also given rise to serious obstacles to applying refugee protection principles properly, irrespective of the actual harm compelling flight.
Turning now to the Swiss practice, against the background of this broader environment for refugee protection, there have been a number of important innovations. Switzerland was one of the first western European countries to use the instrument of temporary protection, with Bosnians being granted "admission provisoire collective", and subsequently the first Western European country to institutionalise temporary protection in the revision of its Asylum Law. UNHCR had no quarrel with this. In fact, in the case of Bosnia, UNHCR promoted the use of temporary protection as a pragmatic and flexible method of affording international protection in a situation of large-scale influx of asylum-seekers. For us, TP remains an important device available to states where there is a significant number of arrivals of persons from the same country, displaced under circumstances indicating that members of the group would qualify for international protection, and where individual refugee status determination procedures cannot handle the large influx over the short period of time. Against this understanding, UNHCR welcomes the Swiss provisions establishing a form of temporary protection, as long as they remain linked to large-scale influxes. The challenge at this point is to more clearly articulate the relationship between TP and the 1951 Convention, as well as the terms and conditions for enjoying and then terminating this temporary status.
Another welcome innovation in Swiss asylum policy has been the design and implementation of particularly tailored voluntary repatriation programmes in favour of refugees originating from Bosnia and Herzegovina, as well as Kosovo. The establishment in each canton of return counselling centres, managed either by NGOs or cantonal authorities, had underpinned the viability of return throughout the asylum procedure .The tailoring of the repatriation programmes has taken into account the individual aspirations of returnees, by for example providing for financial assistance and vocational training ,or reconstruction material, to facilitate return . At the same time, the Swiss authorities have directly implemented rehabilitation programmes in the country of origin both benefiting the entire local population and facilitating the returnees' reintegration. The comprehensiveness of this approach has served not least as a positive precedent for other Western European States. Where we do have an ongoing dialogue with the Swiss authorities at this point is about return to the Balkans of categories of persons still in need of protection, such as members of precarious minorities in Kosovo, or on our concerns about any forceful relocation of Bosnians belonging to minorities and not able to return to their place of origin, as foreseen in the Dayton Agreements.
Switzerland is also a country of some "best practices" as regards its asylum procedures. Of particular note here is the combining in one procedure of refugee status determination with a subsequent review of human rights related obstacles to return, should a case be rejected for refugee status. This second examination is mainly made on the basis of Article 3 of the European Convention on Human Rights, which contains a prohibition against forceful return of any person to a country where that person would face torture or inhuman treatment. The comprehensiveness of this approach offers an interesting if still early model for an asylum procedure endeavouring to harmonise the 1951 Geneva Convention with other Human Rights protections, without adding unreasonable delay. The average length of a first instance procedure lasts only 6 months [now that the Kosovo crisis is over].
Finally, in the area of innovative approaches, let me mention the extension, through the Swiss Asylum Law, of the possibility for an asylum-seeker to file an ordinary asylum claim at a Swiss Embassy abroad. This is something UNHCR has long promoted, as long as there are sufficient procedural safeguards built into the system to ensure a full and fair hearing of the claim by persons with the requisite expertise.
Having drawn attention to positive aspects of the Swiss procedure, it would be remis of me not to mention some concerns, particularly as they relate to Switzerland's approach to non-State agents of persecution. In the view of UNHCR and a growing number of others, an approach which denies refugee protection to victims of persecution by non-state agents is untenable in today's world. If we accept that the primary purpose of refugee status is to provide a temporary and surrogate place of safety for people where, for whatever reason, this is not reasonably available in their countries of origin, then any approach that draws an arbitrary "line in the sand" between different but equally deserving victims, must in UNHCR's view, run counter to the objects, purposes and spirit, indeed the letter, of the refugee protection framework. UNHCR appreciates that some level of protection is offered in Switzerland to victims of such persecution, but would hope that a re-examination of the Swiss position currently underway could lead Switzerland to join the majority of States in recognizing non-State agents of persecution as falling within the ambit of the refugee definition. By extension, we would then look forward to more leading jurisprudence in the area of gender persecution.
I should also mention our concerns about the notion of safe country of origin. This is a concept which was first developed in Switzerland. Although we are pleased that it is only used as an evidentiary tool in Switzerland, it is worth highlighting that it has become, in some countries, an automatic bar to access to asylum procedures. From our perspective, it is impossible to preclude, as a matter of law, the possibility that an individual could have a well-founded fear of persecution in any particular country, however great that country's attachment to human rights and the rule of law. While a sophisticated democratic order and an elaborate system of legal safeguards and remedies would allow for a general presumption of safety, history is replete with examples of no system being either infallible or immutable. Where the notion is used as a procedural tool to assign certain applications to accelerated procedures, or where its use has an evidentiary function, as is the case in Switzerland, UNHCR is less concerned, as long as the presumption of safety is rebuttable.
Although the notion of safe country of asylum did not originate here, Switzerland is also using this concept on a regular basis. The manner of its application gives us less cause for concern here than in many other countries,where UNHCR's recommendations apparently have less sway in this regard. Our position is that the applicability of a safe country notion should be tested case by case and should have no influence in the case of persons who have passed through countries of "mere transit". Whether or not an individual has found - or even could have found - protection in countries through which that person passed is rarely easily or reliably assessed. UNHCR's holds to the view that any decision to return an asylum-seeker to a "safe third country" should be accompanied by assurances that the person will be readmitted to that country, will enjoy there effective protection against refoulement, will have the possibility to seek and enjoy asylum, and will be treated in accordance with accepted international standards.
If we still have some differences with Switzerland, we very much appreciate the openness of the dialogue on them. UNHCR enjoys with the Swiss authorities a very good collaboration on many aspects of Swiss asylum practice. A notable example is UNHCR's role in the airport procedures where, together with the Federal Office for refugees, we jointly have to agree on any decision to return an asylum-seeker to the country of origin if his or her application is deemed manifestly unfounded. In practical terms, this gives UNHCR a major voice in decisions on the admission of asylum seekers to Swiss territory in order to access full asylum procedures.
UNHCR also appreciates the collaboration extended by the Swiss Federal Office for Refugees to our refugee law training programmes and institution building activities in new asylum countries, particularly in Central Europe and more recently in Eastern Europe. These joint programmes have helped to build a solid basis for the drafting of national refugee laws and better application of the Geneva Convention. One concrete example in this regard is Switzerland's recent training of the Czech refugee status determination authorities on the handling of cases involving unaccompanied minors, using their internal regulations as the basis.
UNHCR and the Asylum Appeals Commission also enjoy good cooperation. I take this opportunity to thank the Commission for having organised last week in Berne an excellent conference of the International Association of Refugee Law Judges, which brought together judges from more than sixty countries to discuss topics under the theme of the changing nature of persecution. The support provided by the Swiss Department for Justice and the Swiss Department for Foreign Affairs, enabling this dialogue to take place, should be seen as an important contribution to the development of international refugee law.
Traditionally, Switzerland has been a key partner in achieving durable solutions for refugees by providing a significant annual quota for resettlement opportunities. Unfortunately, as a consequence of the increase of asylum seekers in 1998 and 1999, the Swiss resettlement quota is frozen. UNHCR hopes that the Swiss Department for Justice and Police will reconsider the re-establishment of the very useful resettlement quota previously made available.
Lastly but very importantly, Switzerland will be a key partner in a major protection initiative launched by UNHCR earlier this year. I want to conclude this presentation with a brief explanation of this initiative.
Mindful of the many legal, but also very practical problems now confronting refugee protection, we have decided to take the opportunity of the forthcoming 50th Anniversary of the 1951 Convention to initiate a process of Global Consultations with governments, NGOs and refugee experts, like many of you in this room, with a view to revitalising the protection regime and the place of the Convention in it. Our purpose is both to preserve the Convention's centrality, and that of its basic working concepts, such as the notion of well founded fear of persecution, as a main basis for refugee decisions. We are also seeking to buttress the Convention, where needed, by harmonised additional protections.
These Consultations were announced in July, will begin in substance next year and will more than likely continue throughout 2002. We have a working frame for the Consultations, which has led them colloquially to be termed the "three circles consultations". The inner circle should be seen as the basic globally agreed framework of the 1951 Convention. We hope that an event we intend to organise for the 50th Anniversary of the Convention will be the occasion for States parties unequivocally to reaffirm their commitment to full and effective implementation of the Convention, and more substantively, to examine ways in which this might be strengthened through better supervisory mechanisms. This, if you like, is the political part of the Consultations !
In the next circle of issues, the legal circle, we have placed certain 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 globally today. We will be organising round-tables of experts, informed by background papers, on topics such as the interpretation of the cessation and exclusion provisions, the ground of membership of a particular social group in the definition, and gender related persecution. We intend to publish the papers and results of the discussions as a contribution not only to the 50th Anniversary, but also to better decision-making in the application of the Convention. Such a publication would, we hope, serve eventually as a complement to UNHCR's Handbook.
Finally, in the outer or "practice" circle, there are the gaps being the situations the Convention does not adequately, or at all, cover. Discussions in these matters will take place within the framework of UNHCR's Executive Committee and will focus, broadly speaking, on four thematic areas where, in UNHCR's experience, the practical problems lie: the civilian character of asylum and the protection of refugees in mass influx situations; protection of refugees through individual asylum systems, including the problems inherent in the migration/asylum interface; and realisation of protection-based durable solutions. The overarching theme which will run through these consultations is better co-operation and responsibility sharing solidarity. We hope the consultative process will better define the problems, as well as help to identify new approaches, tools or guidelines. There might even, at some point, be a standard-setting element involved.
In acceding to the 1951 Convention, States pledge themselves to respect and observe a special regime - distinct from that applicable to ordinary aliens - for the reception and protection of refugees. Switzerland has clearly taken this pledge seriously. We count on the support of Switzerland - of its governmental but also its non governmental institutions, such as OSAR, as well as its academics and other refugee protection experts - for the success of the Global Consultations.