Second Colloquy on the European Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons | Opening Statement
Mr Chairman, Distinguished Colleagues, Ladies and Gentlemen
It is a great pleasure for UNHCR to co-sponsor with the Council of Europe, this important meeting. The interest generated by this Second Colloquy demonstrates the important links between human rights and refugee issues in the region and the value of our increasingly close co-operation with the Council of Europe and the European Court of Human Rights.
This meeting provides us with an important opportunity to revisit five years later, the Conclusions of the First Colloquy and to explore some of the recent trends and developments. It also comes at a time of considerable challenges to the protection of refugees, asylum-seekers and other displaced people in the region. I would like to highlight three but certainly not exhaustive areas which illustrate the broad context for your discussions over the next two days.
First, is the process to rationalise and harmonise the various asylum policies and practices of member states. The entry into force of the Amsterdam Treaty of the European Union has brought about major changes as regards asylum and immigration policies in the EU and their place within the overall European integration. The principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law enunciated in Article 6 of the Amsterdam Treaty as the foundation of the European Union, now also govern refugee protection and asylum in the Union. The asylum challenge confronting the Amsterdam Treaty is to ensure the development of a principled, rights?based, common European asylum policy that takes as its starting point the full and inclusive application of the 1951 Convention and respect for the European Convention on Human Rights. We are pleased that the Tampere Summit of the European Heads of State in October last year has set the political framework within which such a harmonised policy can be anchored and the fundamental rights of refugees and asylum?seekers secured.
From UNHCR's perspective, the pronouncements at Tampere were positive developments. There are, of course, dangers probably inherent in any unanimity voting procedures. The first is a temptation to settle for common policy at the lowest common denominator of refugee protection. Another is the risk of limiting the harmonisation process to procedural matters of interest to States to the exclusion of substantive protection issues relating to the rights of the refugee.
The second area relates to the expanding membership of the Council of Europe itself and the fact that 41 states are now subject to the compulsory jurisdiction of the European Court of Human Rights. This essentially positive development means that the influence the ECHR has had on a number of refugee-related issues in the past, can now be brought to bear on a wider number of states. At the same time, this enlargement also calls for cautious appraisal. Unlike the legal systems of the original member states, many of the newly admitted states are, themselves, in political and social transition. Some are still re-forging their national identities and are establishing their domestic legal systems. As a result, it is likely that the volume of cases submitted to Strasbourg will continue to increase and that this will test the administrative capacity of the reorganised Court system.
The third background issue against which your discussions are situated is the fact that large numbers of asylum-seekers continue to enter the region in search of asylum. This is imposing a logistic, financial and social burden that many states feel unable to sustain. The very large numbers of people displaced by different kinds of modern conflict, notably the mass ethnic cleansing in the Balkans, have contributed to a re-shaping of asylum polices and practices of many states in the region. A further influencing factor is the proliferation of people-trafficking and the hardening resolve of governments to put an end to it. The issue of immigrants generally and asylum-seekers specifically, is rated by many states as a priority area of concern in their national agenda. It is therefore unsurprising but deeply disturbing that asylum-seekers and refugees are increasingly the target of a negative and ill-informed media and that national political parties of all persuasions are not averse to playing the "refugee card" to further their own political agenda.
Broadly speaking, we have seen in Europe the continuation of two parallel trends that have impacted negatively on the accessibility of asylum and the quality of treatment received by refugees and asylum-seekers in the region. Both of these are of importance to this Colloquy because they identify the areas where traditional refugee protection approaches need to be buttressed by the human rights standards and mechanisms of the ECHR.
The first trend is an overly-restrictive application of the 1951 Refugee Convention and its 1967 Protocol, coupled with a formidable range of obstacles that states erect to prevent legal and physical access to their territory. The second is a gradual movement in some countries away from a legal rights-based approach to refugee protection altogether, with a growing preference by some states for discretionary forms of protection that provide lesser safeguards and fewer rights to people of concern to UNHCR. For its part, UNHCR recognises the need for flexible and practical approaches in situations of mass displacement. However, concern to accommodate the legitimate preoccupations of states cannot be at the expense of basic principles of refugee and human rights law.
The combined effect of states' restrictive measures has been often discussed in other fora and I need not go into them in any detail. It is sufficient to say that, generally speaking, the climate for the admission, processing and treatment of asylum seekers in Europe is less benevolent today and that in this rather negative economic and socio-political environment, there will be a number of key points of convergence between the work of UNHCR and the European Court of Human Rights. The range of agenda items you will be discussing later should allow for more detailed examination so I will limit my remarks to some general observations in this regard.
Issues relating to access to protection in the asylum State (non-refoulement)
The cornerstone of refugee protection is the principle of non-refoulement with access to the territory of an asylum state a crucial first step. Effective access has both a physical and a legal dimension. Asylum seekers must be able to gain a physical foothold in the territory and they must have access to legal procedures that are able to determine fairly and accurately, the risk of harm they will be exposed to if returned (refouled).
In this context, some of the most innovative and early jurisprudence of the European Court relating to refugee issues, has been its interpretation of Article 3 where the non-refoulement principle of Article 33(1) of the Refugee Convention finds a similar but broader statement. A number of leading decisions have shown the value of Article 3 as a complementary yet "safety-net" mechanism to protect people of concern to UNHCR. I use the word "safety-net" advisedly because ideally, genuine refugees should not have to resort to human rights mechanisms to prevent refoulement.
There are several conclusions one could draw from the fact that failed asylum-seekers are increasingly resorting to Article 3 and the Strasbourg Court.
- as states confront the burden of asylum-seekers and their domestic administrative backlogs, some may be tempted to employ accelerated, truncated and perhaps arbitrary procedures which fail to identify all those in need of protection. This, in turn, will increase the numbers forced to resort to the regional human rights system offered in Strasbourg.
- the jurisprudence and mechanisms of the ECHR are much better known by legal advocates in the national context. As Strasbourg decisions percolate into national law, national lawyers and judges become more familiar with the human rights principles and their relevance to refugee protection. I believe this is a positive development as the overarching objective is, of course, to translate good refugee and human rights practice into the domestic system.
As an individual remedy, the European Court's interpretation of Article 3, together with its useful procedure for injunctive interim relief, will ensure that a "safety net" exists for those cases that slip, for whatever reason, through a national asylum system. Court decisions will also have a normalising effect on national legislation and practice. However, from UNHCR's perspective, the frequency of recourse to Strasbourg may also have a downside.
Although Article 3 can be helpful in individual cases, it has to be of concern where resort to it is symptomatic of a more deep-rooted but unaddressed problem in national asylum systems in the region. Furthermore, although Article 3 may provide an absolute prohibition on removal (refoulement), the rights of people allowed to remain usually are inferior to those of recognised refugees. It would be worrying if states were tempted to use Article 3 more frequently so as to obviate their broader obligations to genuine refugees under the Refugee Convention.
Lastly, the increased burden on the European Court will inevitably strain its resources, particularly as its membership expands. In this context, it is essential that the current high standard of jurisprudence of the Court relating to admissibility of claims and substantive interpretations of the Convention is not eroded by the sheer expedient of numbers and diversity of standards and practices of the broader membership.
Issues relating to the quality of asylum procedures and the quality of reception arrangements
Let me now turn to some other equally important articles of the ECHR that warrant closer attention by advocates and judges alike. Just as Article 3 normally provides complementary protection where conventional asylum systems have proved deficient, other articles deal with human rights which lie at the heart of refugee protection. Arguably, these are an integral part of, rather than a supplement to, the refugee protection system.
Broadly, these rights fall into two categories:
- those rights that relate to the quality and fairness of administrative procedures for determining refugee status. For example, although Articles 6 and 13 of the ECHR have been interpreted rather narrowly in the past, it seems there is still real scope to make national asylum procedures the subject of justiciable rights and to ensure that effective remedies exist at the national level.
- those rights that relate to the quality of treatment of asylum-seekers while they are in the country of asylum. An active interest by the Strasbourg Court in areas such as the legality and conditions of detention, freedom of movement and family reunification through the relevant Articles of the Convention, will help to ensure that already vulnerable people are treated in dignity for as long as they remain in the host state. Equally, although Article 3 has been used as a "safety net" to prevent refoulement, there is also potential for its use to measure whether an asylum state's "package" of reception arrangements meets an acceptable threshold of treatment (i.e. that the combined effect of different reception measures relating to housing, employment, social welfare, health care and education does not amount to inhuman or degrading treatment in violation of Article 3).
It is also clear that the European Court will complement and be complemented by the work of other regional and universal human rights bodies dealing with similar issues. Last year, I attended a meeting here in Strasbourg that recognised the achievements of the European Convention for the Prevention of Torture (CPT). The practical work of that Committee in investigating the conditions of administrative detention of asylum-seekers reinforces the concern shown by the European Court towards the same issue. I should also add that at the universal level, the UN Committee against Torture (CAT) and the UN Working Group on Arbitrary Detention have dealt with similar issues and their correlative human rights standards. A common understanding between these different universal, regional and, indeed, national bodies will go a long way to ensure that human rights standards are better implemented and respected at the national level.
Over the next two days, you will be looking at these issues in more detail and I hope you will be able to identify practical ways to enhance the co-operation between UNHCR, the Council of Europe and the European Court for the better protection of many displaced people. For its part, UNHCR stands ready to respond to invitations for observations in particular cases, as we did in the recent European case of TI v. UK. The issue of removal to a third country is important for UNHCR and we welcomed the opportunity to share our views with the Court. Other areas of co-operation might include our sharing interpretations of refugee law in the framework of joint meetings such as this one, or providing background information on issues such as conditions in countries of origin.
In conclusion, I would add that the protection-related judgements of the Court underpin the dynamic interaction between human rights law and refugee law. For UNHCR, the rulings of the Court can constitute standard?setting benchmarks of direct relevance to our work and can contain important elements of interpretation that impact on UNHCR's capacity to deal with governments.
The common challenge for both the Court under the European Convention and UNHCR under its mandate to protect refugees will be to translate these international obligations into effective action at the national level. In our different but mutually supporting roles, we are the custodians of important human rights and the guardians of many of the regions most marginalised and disenfranchised people.