Address by Ms Erika Feller, Director of the Department of International Protection, UNHCR, at the South Asia Regional Judicial Symposium on Refugee Protection (New Delhi, 13-14 November 1999)
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Mr. Justice Thomas/Honourable Minister, Distinguished Justices and Judges, Ladies and Gentlemen
It is a great honour and pleasure for me to be present at this very impressive gathering of Jurists brought together in a country long known for its generosity towards refugees which I hear is the first of its kind in the South Asian region. I would like to express my thanks to the Supreme Court Bar Association and to the International Association of Refugee Law Judges (IARLJ) as our co-hosts in this important event. I would also like to thank you, the Judges, for finding time from your busy schedules to be with us today.
The great interest shown in this meeting - as attested to by the eminence of those at this podium and others in the room today - is testimony to the impact that refugee and forced displacement issues have on national legal and political systems around the world.
This Symposium comes at an important time for refugees and for UNHCR. At the close of a century that has arguably witnessed more suffering and bloodshed than any before it, we must reflect on the successes and shortcomings of our collective efforts to protect the victims of forced human displacement - in all its myriad forms. Globalisation in communications and economics has gone hand in glove with globalisation of migration and there are few parts of the world that do not either produce or receive refugees. We are confronted by a challenge of universal proportions that demands an equally global response, not only from states but also from influential entities within states, among which the judiciary ranks highly. As Mario Vargas Llosa recently said: "Why should justice be excluded from the general trend of globalisation that has made the nation states of the 19th century interdependent today in science and technology, commerce and culture?"
Peace, justice and the rule of law have become a devalued currency in many countries over the last twelve months. It is difficult to comprehend the appalling acts of violence in Sierra Leone; the expulsions of a population and other calculated atrocities in Kosovo; the wanton destruction and intended mayhem in East Timor; and the seemingly interminable cycles of violence, displacement and suffering in Afghanistan, the Great Lakes of Africa or the Caucuses region.
It is true that many states, including those with limited resources and competing internal demands, have still been able to honour their humanitarian obligations to refugees and stateless persons with a compassion and generosity that exceeds their means. 138 states have now expressed their commitment to protecting refugees through accession to the 1951 Convention relating to the Status of Refugees or its 1967 Protocol. These manifestations of solidarity and burden sharing, at the level both of governments but also civil society - which the Kosovo crisis inspired and which we are now seeing in Timor - send an important message about what the international community is capable of doing.
However these developments cannot, by themselves, offset the fact that systematic violations of human rights, a blatant disregard of humanitarian law in conflict situations, wholesale expulsions of populations and large scale ethnic cleansing, continue to cause significant displacement both internally and across borders in many regions of the world. The civilian character of refugee camps and settlements continues to be compromised, not least through the unwillingness of some governments to place refugee camps away from borders or the lack of commitment of others to address resolutely, the problem of militarisation of camps within their territories. In far too many refugee situations, the vulnerability of women refugees to sexual violence and children to exploitation and abuse, remains unaddressed.
The scale and complexity of modern-day conflict are obstacles to the efforts of the international community to address refugee problems in a proper and principled manner. For many people, asylum in another country is the only viable option for them and UNHCR insists that the gate of asylum remains open for those who need it. However, we cannot ignore the costs, perceived or real, that asylum impose on states and their communities. States assert with increasing regularity, that their options are limited by the economic burden of offering asylum, as well as by competing national priorities for limited resources. Security concerns, interstate tensions, backdoor migration, social and political unrest, ecological damage - are all part of the costs in the asylum equation.
In many developed countries of the so-called "North", national asylum procedures are being misused by economic or other migrants trying to establish new lives for genuine, but not refugee-related, reasons. In an effort to stem or deflect the numbers of people seeking access to these national asylum procedures, states are resorting to increasingly restrictive asylum policies and practices. This is most graphically illustrated by the range of devices that are being used to prevent asylum-seekers from gaining a legal and physical foot-hold in asylum countries. Measures gaining popularity include rigid time limits for filing asylum applications and the use of detention, (including detention which is arbitrary), to deter asylum applications. There is also a trend towards an inappropriate use of otherwise useful asylum-related notions such as "safe country", "internal flight alternative" or "manifestly unfounded claims". Interdiction or interception of persons attempting to enter a territory is gaining acceptability but is often exercised in an arbitrary or self-serving manner.
In responding to these many challenges, UNHCR recognises that there is a balance (or perhaps an accommodation) to be struck. It is a state's sovereign duty to protect the interests of its own population as well as its borders from abuse. By the same token, a state also has humanitarian responsibilities that it owes to refugees and other victims of forced displacement. While many of the measures I have described are intended to avoid exploitation of national asylum systems, they collectively impose formidable barriers to genuine refugees in gaining access to effective protection. They reflect an increasingly restrictive climate of asylum generally and it is disturbing that many of these approaches are readily "exported" to regions where asylum laws and structures are only now being put into place.
If I have dwelt on these trends, it is because they contain two themes that will be of equal concern to Judges here today as they are for UNHCR. The first is found in states that have well-developed legal regimes for the protection of refugees. Many of the restrictive measures I have described are, in fact, legal devices that are being applied in an arbitrary or otherwise inappropriate manner. Instead of the law being applied as a humanitarian instrument to protect people, it is sometimes used as a shield to deflect those very same people away from the only place they can find real safety. The second theme is a tendency in some states to move away from an objective and law-based system altogether. Instead of a process which is protected by the rule of law and overseen by an independent judiciary, some national asylum systems are resting increasingly on ad hoc and subjective procedures built around the exercise of executive discretion. This tends to be driven by the policies and politics of the day rather than by law. If asylum and refugee issues are pushed ever further into the domain of executive discretion, effective judicial supervision - which is a crucial component in the separation of powers and basic to many legal and constitutional systems world-wide - would be lost.
To confront these two challenges, UNHCR sees an urgent need to revitalise the legal principles and ethical values that underpin asylum and refugee protection. The law in this area cannot remain static if it is to meet the contemporary needs of forcibly displaced people, it must be allowed constantly to evolve. By the same token, this process of evolution must remain principled and true to its real object and purpose - the protection of people.
It is here that the Judiciary and Bar in each country will have a key role to play. Distinguished Judges here today represent the proud judicial traditions of different legal systems. But I believe you are all wedded to a common and special commitment - and that is to uphold and protect the rule of law. I think it was Pandit Nehru who once said "the rule of law must strengthen the rule of life" - this is no more true than in the protection of refugees and other victims of forced displacement
There are three distinct areas where strong judicial supervision and, as appropriate, where intervention can provide essential support for refugee protection.
First, is that crucial moment of arrival at the physical and legal borders of the asylum state. Here, judges as well as members of an active bar can disentangle refugees from the wider and more politicised aspects of immigration control. UNHCR fully recognises the sovereign right of all states to control their borders and to protect the interests of the host population. We also share states' concerns that the institution of asylum is not exploited by people not requiring, or deserving, international refugee protection. On the other hand, we must ensure that any national immigration control system allows genuine asylum-seekers the opportunity to have their refugee claims fairly and effectively assessed.
Regrettably, we have seen that some of the most restrictive migration measures adopted by states lie within the purview of executive action. Beyond the immigration gate lies a grey zone that is often beyond the reach of any effective judicial supervision. For example, the interdiction border policies and accelerated "turn-around" procedures of some states have had serious consequences for refugees and the institution of asylum. Regrettably, such measures have met with only limited effective resistance from national courts.
Experience shows that if a state's basic humanitarian and human rights commitments are to be met and genuine refugees protected, it is at the crucial moment of entry that an administrative process must be subject to careful legal scrutiny.
The Second phase where judicial supervision is important is during the process that determines whether asylum-seekers are, in fact, in need of international protection and will be permitted to remain in the asylum state. States have a flexible margin of discretion to design and implement a national procedure that is appropriate to their national context. All procedures must, however, serve the humanitarian object and purpose for which they were intended - here, the effective identification and protection of refugees. Obviously, procedures must be implemented promptly and accurately. But at the same time, expediency cannot be at the expense of justice and a key function of the judiciary is to ensure that all administrative action meets the basic principles of fairness and due process
The old legal adage that justice must not only be done but be seen to be done is no more apposite than in the area of asylum. In this regard, we have been greatly encouraged by the important precedents set by the Indian Supreme Court to prevent the expulsion of groups of refugees. In these and other cases, the Court's interpretation of the "right to life" has given tremendous vitality to the Directive Principles of your Constitution and has provided real support to refugees. These decisions reflect the rich vein of jurisprudence that has become a model for national legal systems in other regions.
Third, members of the national bar and judiciary have a key role to ensure that refugees and asylum-seekers are treated in a fair, dignified and humane way throughout their time of refuge. There is a common but mistaken view that the only obligation owed by an asylum state is not to return people to places where they are likely to face persecution or other serious human rights violations. (the non-refoulement principle). Under this approach, people are allowed to remain in the asylum state's territory but are often denied the most basic rights to support and sustain themselves during what is often a traumatic period of exile. As asylum is increasingly granted on temporary and discretionary grounds, so too is the quality of asylum diminished.
In recent years, UNHCR has noticed a gradual curtailment of such basic rights as adequate housing, education, medical support, family unity, work and social security. Restrictions are also imposed on people's freedom of movement and there is increased resort to different forms of detention - including of women and children.
To counter act this negative trend, there have been a number of creative judicial interventions by national courts that have restored real meaning to the notion of "protection" for refugees. For example, a robust and sustained judicial interest in issues such as detention, which draws heavily from human rights law, can ensure that victims of forced displacement do not suffer a form of double jeopardy when they arrive in the host state.
Timely judicial intervention can also ensure that the life of a refugee is one of dignity in the state of asylum. Again, we can look to the example set by the Supreme Court of India through its various rulings on the detention and return of refugees and the need for UNHCR to be given access to these people to ensure the voluntary character of their return.
Similar creativity has been shown by Judges in the superior courts of South Africa, Australia, Canada, Poland, New Zealand, Zimbabwe and the United Kingdom - to name but a few. I am sure that in our discussions over the next two days, we will hear more about these important approaches and how they can be applied to protect refugees.
These developments of Judicial intervention are, indeed, positive but I would like to add a word of caution. Protection of refugees through the application of normal human rights principles and the ordinary judicial system must be seen as an adjunct to and not a substitute for credible national asylum procedures. The mere fact of frequent recourse to the ordinary courts actually underscores the need for a dedicated refugee determination process at the national level. Ideally, the ordinary courts should not be burdened by this work, except insofar as this is required for the purposes of judicial review and as a place of last resort.
In UNHCR's experience, the most effective national systems to protect refugees are anchored in basic principles that are established by international refugee law. The 1951 Convention relating to the Status for Refugees provides a credible framework within which states can reasonably manage their refugee policies. It has been "field tested" and survived many stern tests in its 50 year life. UNHCR believes that the Convention remains a "living and relevant" instrument that is able to meet not only the basic needs of refugees but which can also accommodate the legitimate concerns of, and provide reasonable flexibility to, states in the new millennium
UNHCR very much favours the creation of national legislation that reflects and implements those basic norms and principles that underpin any regime for refugee protection. In this, the prime responsibility would fall upon a specialised tribunal to adjudicate on refugee issues. Here, the proper role of the Courts would be to oversee and monitor general compliance with principles of natural justice and a nation's constitution rather than to arbitrate on the facts or try to "second guess" government policy - both of which are undesirable consequences of an ad hoc approach to managing refugee issues. I am sure the comparative experiences of our distinguished guests from Canada and South Africa will be very informative.
If I have dwelt somewhat on this issue, it is because UNHCR believes that specific refugee legislation can offer clarity and consistency to the management of refugee protection. In this, the rule of law will give the essential mantle within which the system can operate flexibly. A strong and independent Judiciary will provide general oversight to ensure its credibility and fairness in accordance with international law and the best legal traditions of the national community itself.
Just as refugee issues transcend national borders, so too does the network of judges concerned with them. This Symposium and the work of the IARLJ demonstrate clearly the value of international networks of this kind. I hope over the next two days, you are able to reflect on issues of common concern and to compare experiences from your different legal systems. At the same time, I am sure you will be reminded of the crucial role that judges can and do play in protecting some of the more vulnerable and dispossessed people in any of our societies. After all, this must be the true purpose and function of the law.
I thank you