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'The 1951 Convention in its 50th Anniversary Year' - Statement by Ms. Erika Feller Director, Department of International Protection, to the 52nd Session of the Executive Committee of the High Commissioner's Programme

'The 1951 Convention in its 50th Anniversary Year' - Statement by Ms. Erika Feller Director, Department of International Protection, to the 52nd Session of the Executive Committee of the High Commissioner's Programme

3 October 2001

The year 2001 has been a year of significant international setbacks. The world has watched with disbelieving horror the events of September 11 in New York and Washington. The year has seen a noticeable worsening of the situation inside and around Afghanistan. The stalemating, or breakdown, of peace processes in West Africa, East Africa, or the Middle East and the obstacles to settlement efforts, from Western Sahara to the Balkans, has been marked. Violence grinds on in Colombia, in Angola, or in Chechnya; the list is soberingly long. Trafficking and smuggling of unfortunate people for gain has proliferated, leading to an exponential increase this year in the exploitation of human misfortune and in its victims. This, and more, is the context for the 50th anniversary of the 1951 Convention relating to the Status of Refugees, which also happens to fall this year.

Human displacement is inevitably a feature in one form or another of each of these developments. The figure for refugee and internal displacement invoking the mandate of UNHCR remains at the 22 million mark. One main conclusion of the High Commissioner's Note on International Protection for 2001 is that the humanitarian, human rights and people oriented protection rationale for the 1951 Convention is as strong as it ever was.

The Note is an important document which I am pleased now to introduce. The Anniversary has offered us a timely opportunity to focus specifically on the Convention, its present context, the role it plays, the challenges it faces and the level of its implementation. An important conclusion of this analysis is that the Convention has proved its resilience, that its non-political character has been instrumental in enabling it to operate in today's often highly politicised contexts and that respect for the Convention overall remains strong. This being said, it is also clear that implementation across the spectrum of its provisions is variable and encounters many obstacles.

A number of them, elaborated in the Note, are very operational in nature. The sheer size of many refugee outflows can make individualised identification of refugee status and the grant of the rights regime envisaged in the Convention purely impractical, at least in the first instance. Mixed population flows do not always lend themselves to management completely within the Convention framework. The daunting task of creating a measure of physical security for refugees, as well as for the humanitarian staff there to protect and assist them, can in practice become the overriding protection objective, necessarily rendering longer term other aspects of protection envisaged in the Convention. Militarized camps are of particular concern, endangering the security and lives of all the inhabitants and of the surrounding population. Responsibilities for separating, disarming and interning armed elements and taking other measures to neutralize them lie outside of the scope of the Convention. The physical and social vulnerabilities of women, children and elderly refugees have been a particular protection preoccupation, as the Note makes clear.

Physical security is the most visible of the protection problems confronting refugees. It cannot, however, be divorced - as sometimes there is a tendency to do - from the more structural and legal aspects of refugee protection, which the 1951 Convention more directly addresses. Physical and legal security go hand in hand. Without laws in place, or at least a guiding framework of principles or benchmarks within which refugee problems should be addressed, physical protection may well prove a distant, even illusory, objective. It is not least for this reason that UNHCR pursues activities directed at promoting both physical and legal protection, where possible, in tandem.

Amongst the structural or legal challenges confronting the proper application of the Convention, flagged in the Note, I would like briefly to bring out the following:

  • First, the "integrationist" approach taken to the Convention's application over the 50 years of its existence, which has given birth to systems to implement the Convention which in some countries are not well enough attuned to mass arrivals, or even to large numbers of individual asylum seekers. The length and cost of many State procedures for the grant of status, and the "pull factor" this has constituted for would-be migrants, have led Governments in these countries to question the utility of the Convention. I would only observe that the fault here is not the Convention itself. The Convention does not prescribe the procedures for applying it. It is also carefully framed to define minimum standards, without imposing obligations going beyond those that States can reasonably be expected to assume.
  • Then there is the problem of definitions and the fact of some discrepancy between Convention refugees for whom states have explicitly accepted responsibilities and the broader class of persons within UNHCR's competence. It certainly does not contribute to the proper functioning of the Convention that states interpret their protection responsibilities not to extend to persons UNHCR accepts to be within its mandate, or for whom UNHCR has specifically been given protection obligations. There is a need to put an end to such issues as whether the victims of violence and persecution by non-state actors are entitled to protection as refugees, or whether the notion of persecution can be reasonably extended to protect women from gender related violence. More generally some rationalisation of definitions and responsibilities is called for to introduce greater certainty of the necessary protection outcome.
  • The changed displacement environment also contributes to problems not always fitting with the Convention framework. Flexibility in its application is anyway called for, consistent with its purpose and intent. Going beyond this, however, it is clear that the Convention does not cover all protection needs and has to be buttressed through the further development both of the international legal tools, but also of the practical response possibilities. I will return to this point in a minute.
  • While there is a general understanding that more equitable burden and responsibility sharing would quantitatively improve the political climate and asylum possibilities for refugees, in practice responsibilities are not well shared and there is no system in place which effectively operates to ensure this, so that incentives for burden shifting, rather than burden sharing, are unfortunately more commonplace. The Convention is not specific on how burdens can best be shared, even while this in practice underpins its effective implementation. Much more thinking needs to be given to how to effect better burden sharing.
  • At the international level, there are also complementary forms of protection, notably those in place through human rights instruments, which both strengthen the protections available to those meriting it, but create some problems as regards persons who do not. Unintentionally this has left questions hanging over the institution of asylum broadly defined, with public confidence in it being eroded where persons who are clearly not entitled to refugee protection are nevertheless allowed to stay because of the operation of human rights provisions.

Mr. Chairman, taking this last point in more detail, it has, I believe a particular resonance in the light of recent events. The 1951 Convention does not extend protection to the non-deserving. The definition is so framed to exclude from the ambit of the Convention persons who have committed particularly serious offences. The prohibition on return amounting to refoulement is lifted where persons are a danger to national security, or where they are convicted of a particularly serious crime. In the event that human rights provisions in other international instruments come into play to prevent return, this has no effect on the proper working of the 1951 Convention. The excluded remain excluded, without any benefits of refugee status. The Convention, if properly applied, should not offer safe haven to criminals. UNHCR is aware that, nevertheless, a number of States are currently examining additional security safeguards which they might build into procedures for determining refugee status so as to strengthen the guarantees offered by the exclusion provisions. We believe that this is a reasonable examination to undertake and DIP will, in this connection, examine what might be termed the best practices of states in this regard. Our purpose in so doing is to avoid wrong answers being given to this inherently reasonable question. Put another way, our hope is to see any additional security based procedural safeguards striking a proper balance with the refugee protection principles at stake.

It is unfortunate that the trend towards criminalisation of asylum seekers and refugees seems to be on the increase. Indeed there are some persons in both categories who have, or will be, associated with serious crime. But this does not mean that the majority should be damned by association with the few. As the Note points out, asylum seekers increasingly have a difficult time in a number states, either accessing procedures or overcoming presumptions about the validity of their claim which stem from their ethnicity, or their mode of arrival. Because they arrived illegally does not vitiate the basis of their claim. Because they have a certain ethnic or religious background which may be shared by those who have committed grave crimes does not mean they, themselves, are also to be excluded. Clearly we endorse multilateral efforts directed at rooting out and effectively combating international terrorism. Resolute leadership is, though, called for at this particularly difficult time to de-dramatise and de-politicise the essentially humanitarian challenge of protecting refugees and to promote better understanding of refugees and their right to seek asylum.

Just as protection, also solutions for refugees must not become another victim of tragic acts of terrorism. This plea includes resettlement. We have been concerned over recent days about a certain disinclination on the part of some resettlement countries to maintain their programmes at the promised levels, particularly for certain ethnic groups. Resettlement remains imperative, not least in the context of the Afghan refugee situation, in which are still caught up the main beneficiaries of the programmes, including women at risk. Continued support for resettlement is of vital importance. For our part, the Department of International Protection is maintaining its efforts to diversify the number of resettlement countries, and to strengthen its programmes, from emergency processing through to more systematic and elaborate use of resettlement to address durable solutions needs of refugees.

Certainly, the atmospherics surrounding the Convention are becoming one of the chief challenges to its proper implementation. There are too many myths about what the Convention is and what it is not. For UNHCR what it is, is where refugee protection starts. It serves, together with its Protocol, as the most comprehensive instrument we have at the international level to safeguard the fundamental rights of refugees and regulate their status in countries of asylum. It is no more and certainly no less. It is not a migration control instrument. It is not a bill of general rights and does not set out rights and responsibilities without their proper limits. It is not a safe haven for terrorists. And it is not only about additional burdens for States.

Allow me a few words on this increasingly automatic equation of "refugees" with "burdens". It is true, as the Note acknowledges, that there are costs associated with hosting refugee populations, particularly for protracted periods in countries with developing economies. Here, let me Mr. Chairman, note in parenthesis that, in light of the positive experience with the on-going voluntary repatriation of some 176,000 Eritrean refugees, hosted in Sudan since the early 1960s, UNHCR is now looking to invoke the cessation clause by end of 2002 for this refugee population, which is one of the most protracted one in Africa. Refugees do go home. Where they do not, or until they can, many, many refugees have proved a distinct advantage, not a burden for communities. It is almost a truism now to say that history is replete with instances of refugees bringing with them skills and many different forms of contributions to the societies receiving them and to the national development of their economies. But I want to make a slightly different point, which is not to be under-estimated in the protection context. A too ready equation of refugees with burdens is not only misguided, but it significantly distorts the perception of the refugee problem and the needs to be addressed. In a refugee situation the primary need to address is the human predicament of the refugee. The burdens it may provoke demand sensitivity and an international response - as indeed the 1951 Convention recognises - but they cannot be allowed to obscure the fact that refugees present, primarily, a humanitarian and human rights responsibility of care, not burdens to be kept at bay.

Mr Chairman, it was not least to set the Convention back into its proper context and to promote a better understanding of its strengths, its limitations and its potential, that UNHCR set in train the Global Consultations on International Protection, which has preoccupied many of us for the past year. Our thanks go firstly and in advance to Switzerland for co-hosting with UNHCR, and bearing the brunt of the responsibilities and costs of organizing, the December Ministerial meeting. I should also take this opportunity to formally thank the United Kingdom, United States of America, Japan, Sweden, Norway, Australia, Canada, Netherlands, Luxembourg, and the European Community for so generously making the Global Consultations budget. We are also very grateful to the Governments of South Africa, Canada, China, Hungary, Costa Rica, Egypt, and Norway for hosting the various regional meetings. The voice of the refugee has also been heard, not least due to the two important refugee forums hosted in France, respectively in Paris and in Rouen.

Mr. Chairman, UNHCR is particularly pleased that, at the Ministerial Meeting of States Parties, to be held on December 12 and 13 this year, a Declaration will be adopted which will reaffirm the centrality of the 1951 Convention and its Protocol in the international protection regime and the commitment of States to its proper and principled implementation. This Declaration builds upon widespread endorsement of the Convention and of strengthened implementation in many fora throughout this anniversary year, including by the Inter-Parliamentary Union Council in Havana, the OAU Heads of State and Government Summit in Lusaka, the OAS General Assembly in Costa Rica, the EU by Declaration issued in Brussels on this Anniversary year, and the Parliamentary Assembly of the Council of Europe in Strasbourg, as well as through the revised Bangkok Principles adopted by the AALCC in its annual meeting in New Delhi.

The Note sets out some ideas you may wish to reflect upon as regards strengthening implementation. These range from a more regularised system of reporting and periodic meetings of states parties for the purpose of reviewing implementation, to harmonised regional processes for application of its provisions. Improved monitoring is basic, in our view, as is more active support for UNHCR's supervisory role under Article 35 of the Convention. A number of ideas were put on the table during the Global Consultations expert Roundtable which was held in Cambridge in July of this year. Among them you will find suggestions promoting a more creative use of the Executive Committee forum. In parenthesis here, we have been particularly pleased by the way the Executive Committee has taken on the challenge of the Global Consultations. Discussions have been reminiscent, at least for some of us, of the manner in which the Sub-Committee on International Protection used to function, and leaves open the question as to whether that Sub-Committee was not, in fact, the best way to achieve focused and outcome oriented protection discussions. Overall the challenge, as the Cambridge roundtable recognised, is to find ways to strengthen implementation which add to, not dilute, the primacy of the voice and authority of the UN High Commissioner for Refugees, in pursuance of the mandate which attaches to this office and which Article 35 of the Convention reinforces.

Mr Chairman, there are clearly challenges to the overall regime, some of which I mentioned earlier, which call for approaches to supplement the protection it offers. The Global Consultations process continues to be a source of ideas in this regard. At the end of the process, which is currently scheduled for mid-next year, we intend to bring together the number of suggestions it has generated for follow up, either by UNHCR or by states and other actors, into what we have been calling an Agenda for Protection.

Early in the Global Consultations process, UNHCR promised to frame the follow-up proposals - your proposals - coming out of third track discussions in the form of an agenda for activities to strengthen protection over the coming period. As I explained to the session last week, our expectation has always been that this Agenda should serve as a guide to action by UNHCR, and an inspiration for States, NGOs and other protection partners in setting certain objectives, for the years ahead. It will be a document the responsibility for which - for its content and for following it up - will be shared. It will not, because it cannot, bind the hand of anyone. It should be, in fact, no more but certainly no less, than your own ideas and proposals, as they form during the Global Consultations process. Two follow-up documents have been produced to reflect the March and June third track meetings. Elements of this Protection Agenda will be drawn from these two documents and a third one to be produced on our meeting last week, and will be available to the Ministerial Meeting of States Parties in December 2001. The Ministerial Meeting will not have to endorse the ideas, which are anyway only provisional. The Agenda, in final form, will have the benefit of whatever reflection is given to it at this Ministerial meetings. We are heartened that the Agenda, and joint responsibility for its formulation, is, together with the Global Consultations process generally, receiving much support at this session. We are also gratified for the support the Consultations have received, more broadly, including most recently at a meeting of the Commissioners for Refugees from the South African Development Community countries. As some of you may be aware, the first ever meeting of the SADC Commissioners took place on 20-21 September, in a region which has 1.3 million refugees and nearly 4 million IDPs. Their endorsement of the Global Consultations process, with an undertaking by the countries represented to participate at the appropriate level at the upcoming Ministerial Meeting in December 2001, is indeed most welcome.

Actually, follow up to Global Consultations discussions is already in train. For example, the joint UNHCR/IOM Action Group on Asylum and Migration (AGAMI) has now been established, with a first meeting between the two organizations having taken place several weeks ago. Also, at the March meeting, there was consensus that an Executive Committee Conclusion on Registration should be adopted this year. This will take place later at this session, together with the General Conclusion on International Protection. We were pleased that the drafting process has been somewhat less contentious this year, which perhaps is a reflection on the more consensual nature of the issues under discussion. UNHCR appreciates the encouragement given in the Conclusions to strengthening resettlement and to the continuation of our activities in respect of stateless persons. The recognition in the text of the particularly adverse effects of statelessness on women and children is new and important.

I should say, Mr. Chairman, that while the Global Consultations is a process, it is one with specific objectives and outcomes in mind. Reaffirmation of States' support for the 1951 Convention as well as a clear commitment to its strengthened implementation will be one important outcome of the process. We hope the meeting at the end of the year will serve to stimulate thinking in this regard. An update of aspects of UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status will come from the expert roundtables and should, we expect, contribute to a better understanding and application of the Convention's terms. As regards the part of the process designed to build upon the Convention protections, the so-called Third Track, the agenda for protection will result. Clearly, implementation of the various follow-up activities will take time, and will have to be programmed in a staged, possibly multi-year, manner.

Lest there be any doubt, the Global Consultations process is but one of a range of responsibilities vested in the Department of International Protection. I am extremely gratified by the commitment and the productivity of the small Global Consultations team we have brought together, inside DIP, to make the process work. The Department continues, in tandem, its global oversight and training responsibilities. You may be aware that the DIP was restructured this year to sharpen its focus on capacity building within UNHCR. Particular attention has been turned to improving management of the protection function by UNHCR field offices. Certain tools have been developed within DIP to this end, including a set of Protection Indicators which should allow the field to better monitor their own protection performance. Pursuant also to this objective, a series of protection and resettlement management workshops are being organized, which bring together Representatives together with their protection staff and which focus on, inter alia, issues of accountability for managing the protection function. The first one, which followed my familiarization and oversight mission to Guinea and Sierra Leone, was held in Abidjan, for the West African region. We worked very closely in this connection with the Regional Directorate for West Africa. Another is planned shortly for the East African countries, to be held back to back with a protection oversight mission to one of them. As regards resettlement, one focus has been on reviewing our practices in different regions of the world, with a view to improving both RSD decision making and resettlement processing capacity, so as to improve the synergy between them and minimise scope for abuse of both. An important Resettlement Assessment Mission visited a series of countries throughout the African continent at the beginning of the year and generated, among other things, a useful set of tools which we have been piloting in some designated countries in different regions over the past number of months.

Protection capacity - how we do protection and with what skills and resources - is a particular preoccupation for UNHCR at the present juncture. Doing protection is a function of knowing the framework well, of being trained to work with it sensitively and effectively, and having staff with the requisite skills and level to be authoritative and convincing. The role of the Department of International Protection in this regard is to strengthen skills capacity throughout the Organisation and particularly in the field, as well as to facilitate the deployment of staff where there are significant gaps. To this end, the Department has conceptualised and now runs three protection deployment schemes, working in close partnership with both States and Non-Government Organisations. These projects provide a concrete opportunity for UNHCR to build on its valued protection partnerships with NGOs, promoted through our earlier Reach-Out initiative. This took as its starting point that the doing of protection can, in many areas, be shared, albeit that our mandate as such clearly cannot be devolved. Protection training, both inside and out of the Organisation, has also featured as a priority concern over the last twelve months, during which we have successfully piloted an entirely new protection learning programme for UNHCR staff at different levels of familiarity with protection work. We are cooperating closely, in a three-year protection training project, being spearheaded by NGOs, also pursuant to Reach-Out.

Mr. Chairman,

Allow me to conclude on a thought borrowed from the Note. The Global Consultations process has been motivated by the goal of furthering refugee protection, predicated on the realization that this is ever more a global concern. International refugee protection has been accepted therefore as a common trust. One essential aspect of such a trust is that responsibility for ensuring it is either widely shared by many or it will be born by no one.