Statement by Ms. Erika Feller, Director, Department of International Protection, UNHCR: UNHCR - APU - IPU: Regional Parliamentary Conference on Refugees in Africa. The Challenges of Protection and Solutions (Cotonou, 1 June 2004)

Refugee Protection: The Basics and New Directions

Mr. Speaker, Mr. President, Mr. Secretary General,
Mr. Chairman, Your Excellencies,

I am honoured to be able to address this first regional parliamentary conference focusing on refugees, organized by the African Parliamentary Union (APU). I would like to reiterate UNHCR's appreciation to the National Assembly of Benin for its warm hospitality in hosting this event, as well as to the APU for all the vision and energy that went into its preparation. I have been asked to introduce you to the basic framework for refugee protection, as well as, most important, its bearing on refugee protection in Africa. In so doing, I am here really to learn from you, from your experiences, and your vision as to where we should together be going.

There have, of course, for many centuries, been refugees enjoying asylum on this continent as elsewhere. It was, though, really as late as the 20th century that awareness started to take hold that the responsibility for refugee protection and for durable solutions to their problems was a shared one. International cooperation not only responds to a real humanitarian need, but also makes good political sense. Refugee movements are as much a product of instability, as a contribution to positive solutions for refugees can be a significant factor in resolving the situations which provoked the refugees flows in the first place.

This important conference comes at a critical juncture for Africa. Six of the ten major refugee-producing countries are in Africa. At the same time, the return of up to two-thirds of Africa's four million refugees may at long last be within reach, with the support of the international community. UNHCR is currently in the process of concluding five voluntary repatriation operations; namely to Angola, Eritrea, Rwanda, Sierra Leone and North-West, Somalia. But we are also seeking additional resources from the international community to start preparations for organised voluntary repatriation to Burundi, the Democratic Republic of Congo, Liberia and Southern Sudan. This conference therefore presents a unique occasion to hear the views of parliamentarians from across Africa on how to seize the opportunities presented by ongoing peace processes to help millions of refugees and displaced persons to return home in safety and dignity. At the same time, it is an ideal forum to initiate a dialogue with parliamentarians on how to ensure better protection for those refugees who are still unable to return home due to continuing fear of persecution or armed conflict in their countries of origin.

There are globally some 10 million refugees under the mandate of the United Nations High Commissioner for Refugees at the present time. This is around half of the overall number of persons of concern to us under the High Commissioner's mandate. Twenty-two per cent are hosted in African countries. The number of refugees has actually gone down somewhat over recent years. But what the statistics mask is the reality of a worsening environment for refugee protection and assistance, which stands in stark contrast to the improving figures. So why is this so? The reasons, for a number of countries, include the costs - real or perceived, be they political, economic, and/or social in nature - of hosting refugees for long periods. These are, very unfortunately, not sufficiently weighed, in public sentiments or in the analysis of policy-makers, against the many pluses that refugees can and do bring to host societies. The result is a sharply negative impact on the willingness of States to receive refugees. In addition, internal and inter-state conflicts continue to produce displacement - across borders but also, in ever larger numbers, internally within countries - just as solutions to many large-scale and long-standing situations remain elusive. Problems of illegal migration, smuggling and trafficking of persons in some parts of the world, and the security dimensions of refugee problems in many regions, have compounded the situation. This has led to politicization of the institution of asylum and, in some states, to a tendency to criminalize refugees and asylum-seekers. Significantly, too, there is a growing perception that burdens are disproportionately spread, coupled with a sense on the part of many states that they are not adequately tooled and are only able to react after the fact, not act in anticipation, to manage their problems and meet their responsibilities.

The problems present themselves differently and variously, country by country. There are also regional specificities to contend with. You will hear in the coming presentation how they manifest themselves across Africa. I want, though, to try and set the specific problems you will be discussing into their global context. What are the challenges refugee protection confronts globally?

The first to which I would draw attention is how to ensure the continuing availability of "quality" asylum. This is a collective responsibility. Because of the combination of factors I mentioned earlier, what UNHCR is witnessing around the world is an increasing reluctance on the part of a number of states, either to make asylum available at all or to offer it on adequate terms. Put simply, in some important partners states for UNHCR, more doors are closing and the standards are being wound backwards. UNHCR's efforts increasingly focus on how to work with states to improve the quality of asylum globally and contain the spread of unwarranted deterrence measures. We fully appreciate the need, in this connection, to manage asylum in ways which respect legitimate national concerns. There is, though, in our experience, no incompatibility between law and decent standards of treatment and protection being made available on the one hand and, on the other, the national interest of states. Indeed, quite the reverse is true. The more one invests in effective protection, the less is the likelihood of secondary movements or unsustainable solutions.

This leads into the second challenge, which is the fostering of more effective partnerships in support of the international protection system. With protection needs many and resources not adequate, partnership-building is an indispensable priority. There are many possibilities here, and with a wide variety of actors ranging from states, intergovernmental and non-governmental organizations, judges and journalists, through to the military or peace-keeping forces, to the corporate sector and, most importantly in the present context, to parliamentary constituencies in the host states. As opinion-leaders and decision-makers, parliamentarians can help to demystify refugees, disentangle them from confused public debate about terrorists, fighters and illegal immigrants, and thereby encourage greater tolerance and more informed decision-making. As lawmakers, parliamentarians also have a special responsibility to put in place the proper legal tools to ensure rights and to contain arbitrariness as a feature of refugee policy. Parliamentarians hence are key partners in asylum management. It was, not least, for this reason that, together, UNHCR and the Inter-Parliamentary Union (IPU) produced the Handbook for Parliamentarians on Refugee Law that, I believe, has been distributed at this conference and we strongly commend it to those of you who are or will be engaged in the refugee debate in your own countries. It has been a much sought after text in this regard.

A third challenge concerns the available tools. There are some, but maybe not enough, to enable states to manage their asylum challenges - to act, not just react, as I mentioned before. There is of course an important international instrument, the 1951 Convention relating to the Status of Refugees, whose basic principles endure today as both relevant and as fundamental to refugee protection as they always have been. This being said, it is certainly UNHCR's experience that the rules and principles, while solid, still need further buttressing. This continent, not least, found it necessary to build upon the Convention in important areas, ranging from the definition of who should be considered a refugee to standards of treatment and what solution should be pursued. The result was the 1969 OAU Convention concerning refugees in Africa, a singularly influential instrument not just here, but globally. We are currently working with governments to see what additional arrangements or agreements need to be considered to make protection and solutions more readily available, on the basis of new responsibility-sharing arrangements. The High Commissioner has termed this initiative the "Convention Plus" process.

Protection of refugees in exile is but part of the protection responsibility. The promotion of solutions which last is the ultimate goal and end product of all protection efforts. The problem today is that many refugee situations are ones of protracted exile, with solutions elusive in the face of ongoing conflict or human rights violations in countries of origin. Solutions are also chronically under-funded, and too often lack the necessary national or international political support. Shifting efforts more resolutely to promotion and realization of solutions, at the earliest possible opportunity, is the fourth challenge.

And doing so, in a spirit of international solidarity with the focus on actualising burden sharing, is the fifth challenge. There is a clear inequality of burdens, with responsibilities for refugee protection falling disproportionately on countries, very often developing countries, hosting large numbers of asylum-seekers in inadequate conditions. This is now commonly realized. What is lacking through are the concrete mechanisms to achieve it. We have been working with states not only to "popularize" the notion of burden sharing (if I can put it like that), but more importantly to give it actual content. What mechanisms are available and how we can bring them into operation are central issues for us.

Sixthly, there is the challenge of identifying and protecting refugees within broader migration movements. UNHCR's mandate does not extend to migrants generally. It is, at the same time, a fact that refugees often move within broader mixed migratory flows. UNHCR is pursuing a variety of initiatives at the interface between asylum and migration so that people in need of protection find it and people who wish to migrate have options other than through resorting to the asylum channel. This is obviously a problem for our European partners, but not only. Interestingly, it is also a growing feature of the refugee dynamic on this continent as well.

In all of this, the 1951 Convention regime has to retain its central place. While the Refugee Convention may be five decades old, it is, as I mentioned earlier, certainly not outdated. There are some 145 states that are party to one or both of these instruments and the number continues to grow. States parties met for the first time, as a community of states joined through Convention membership, in December 2001. At that meeting in Geneva, Switzerland, they recommitted themselves formally to the instrument and its strengthened implementation. This was an event really of some significance, as it was the 1951 Convention which put in place the enduring foundation for refugee protection. It provided a global definition of who is a refugee and established the baseline principles, including:

• That the refugees should not be returned to face persecution or the threat of persecution (the principle of non-refoulement);

• That persons escaping persecution cannot be expected to leave their country and enter another country in a regular manner and, accordingly, should not be penalized for having entered into or for being illegally in the asylum country;

• That given the very serious consequences the expulsion of refugees may have, such a measure should only be adopted in exceptional circumstances directly affecting national security or public order;

• That protection must be extended to all refugees without discrimination;

• That the problem of refugees is social and humanitarian in nature, and therefore should not become a source of tension between States;

• That, since the grant of asylum may place undue burdens on certain countries, a satisfactory solution to the problem of refugees can only be achieved through international cooperation; and

• That cooperation of States with UN High Commissioner for Refugees is essential if the effective coordination of measures taken to deal with the problem of refugees is to be ensured.

In the African context, the 1969 OAU Convention in effect gave the 1951 Convention a regional specificity. It updated the refugee definition through expanding it to include the increasingly prevalent victims of generalized conflict and violence. The OAU Convention also advanced the 1951 Convention by recognising the security implications of refugee flows and more specifically focusing on solutions - particularly voluntary repatriation - as well as through its promotion of a burden-sharing approach to refugee assistance and protection.

The High Commissioner's Convention Plus initiative is a further effort to take a fresh look at the international protection regime, with a view to reinforcing its strength and complementing it where it is less strong. The initiative in fact flows out of a broad-ranging dialogue with states, intergovernmental organizations, non-governmental organizations, UNHCR and refugees themselves - known as the Global Consultations on International Protection. This dialogue culminated in the adoption of a document, the Agenda for Protection, which sets out a programme to be pursued internationally, by states and organizations alike, in furtherance of a more coherent, consistent and equitable response capacity. The Agenda is structured around six broad goals: strengthening implementation of the 1951 Convention and its 1967 Protocol; protecting refugees within broader migration movements; sharing burdens and responsibilities more equitably and building capacities to protect and receive refugees; addressing security-related concerns more effectively; redoubling the search for durable solutions; and meeting the protection needs of refugee women and refugee children. For each goal, objectives are set out and activities identified. Its implementation is clearly a multi-year process but is well in train.

The Agenda is very relevant to the better management of asylum, including, we believe, in your respective countries. For example, the Agenda has a focus on preventing age-based and sexual and gender-based violence, as well as on concrete measures to empower refugee communities for their own protection. In so doing, it responds to the experiences of women and girls in African camp environments. The emphasis in the Agenda on preserving the civilian and humanitarian character of asylum is in reaction to the militarization of camps in many parts of the world, African countries included. The Agenda encourages strengthening of national protection capacities and comprehensive arrangements for durable solutions, with responsibility sharing as an essential ingredient. This is an effort to redress inequalities among host states. Some of the major host states are on this continent. The Agenda also calls for expansion of solutions, and suggests ways to address protracted refugee situations. It encourages, for example, better and more strategic use of resettlement, as both a durable solution and an instrument of burden and responsibility-sharing. Resettlement in greater numbers out of Africa could indeed make a contribution to alleviating suffering and burdens. The Agenda asks donor countries and host states alike to target development assistance and programmes in a way that increases the capacity of host countries to protect and assist refugees, while spurring the development of local communities and making repatriation sustainable.

If I have devoted some time to the Agenda, it is not only because it has much to contribute to deliberations at this Conference. More importantly, for the longer term, it is the considered product of perhaps the first, truly international, multilateral process convened to take stock of refugee challenges and how to better manage them. Your governments all participated, not only in the reflection, but also in the drafting of the Agenda. It is therefore your Agenda, as much as that of any other group of countries. It is clearly in the interests of important constituencies such as your own to be knowledgeable about it and to advocate for it to be implemented.

Of course there have been other processes more specifically centred on this region. In the coming days there will also be the opportunity to discuss how to take forward the recommendations that came out of the OAU/UNHCR Special Meeting of Experts in Conakry, Guinea in March 2000. The Agenda for Protection itself drew on its Comprehensive Implementation Plan (CIP). This Conference provides us with the opportunity to discuss how parliamentarians will use both these documents, perhaps by agreeing on a parliamentary action plan for Africa. At least this is our hope. I will not pre-judge what this plan might look like. We would hope though, that particular attention could be given here to the problems posed by mass influxes of refugees.

Refugee flows on this continent are marked too often by their mass character and the suddenness of the outflow. They are often, as well, accompanied by large internal displacement, and by an explosive mix of combatants and civilians, with root causes that continue unabated and unaddressed.

UNHCR will shortly be putting for debate - and we sincerely hope this conference will serve to inform that debate in important ways - a series of suggestions on how to better manage mass influx situations. One objective we have here is to encourage an international response to mass influx shaped by policies that not only contribute to relieving the refugee situation, but also to the stabilization of host communities in a development context. We also want to promote the tackling of root causes of displacement more collaboratively, as well as a more critical examination of issues such as "in-country" protection, and how far they can be made compatible with the right to seek asylum and the responsibility not to refoule at frontiers. We will be suggesting more broadly based burden-sharing strategies, built around:

• Diplomatic and political intervention regarding the country of origin;

• Financial assistance towards emergency needs, development efforts and poverty reduction, as well as in-kind assistance and debt-relief;

• Humanitarian transfer or evacuation programmes; and

• Expanded resettlement.

Finally, we want to look at possible mechanisms to spur international cooperation in situations of mass influx which would bring together key governments and other actors, at the outset of a crisis, not only after it has set in. The idea would be to find an agreed mechanism which would ensure multilateral cooperation, lifting this out of the realm, as at present, of ad hoc charity and the vagaries of political and humanitarian sentiment. Ideally such a process would produce an actual response framework, framed in the form of a plan of action. To this end, we are even now giving some thought to a model response framework, which could perhaps be developed through the High Commissioner's Convention Plus initiative. We are also not excluding, at some point down the line, a new international treaty, perhaps a new Protocol to the 1951 Convention.

This is all for quite some months or even years ahead. For the coming days we look forward to constructive and interactive dialogue and a Conference outcome - the Cotonou Declaration and Programme of Action - which will make a significant contribution to the better protection of refugees on a continent with a long and generous asylum tradition, but where refugee flows are an ever present, daily human tragedy.