Lecture by Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, at the University of Chicago Law School Public Service Law Week, Chicago, 25 October 1993
I am very pleased to have this opportunity to address you today on the subject of refugees. It is a fitting topic for a keynote speech during Public Service Law Week at the University of Chicago Law School.
It is also very appropriate that the co-sponsor of this gathering is the "Thanks to Scandinavia" Foundation. Fifty years ago, when most of Europe was overshadowed by Nazi domination and war, the people of Scandinavia in a remarkable gesture of courage and humanitarianism helped thousands of its Jewish population to escape persecution and find sanctuary. It was only after the end of the Second World War that the enormous human suffering of the displaced and the persecuted in Europe came to light. The concern which it generated was largely instrumental in the creation in 1951 of my Office, the United Nations High Commissioner for Refugees (UNHCR), with a mandate to provide protection and assistance and seek solution to refugee problems throughout the world.
Today Europe is once again confronted with war. "Ethnic cleansing" has become the new euphemism for persecution, forcing over 4 million people to flee their homes or live under siege in former Yugoslavia. Persecution and intolerance are as much the cause of refugee flows today as they were fifty years ago. The human misery of the uprooted is as poignant today as it was then. Their need for protection and assistance, for finding new homes or returning to old ones, is as real and urgent now as it was half a century ago.
The problems of refugees have not changed. But the refugee problem has. In my address this afternoon I would like to point out the main features of the changes, and examine some of the new trends in refugee law and policy which are being developed in response to them. Finally, I would like to highlight the need for a more comprehensive legal framework to tackle the growing scale and scope of refugee problems.
Let me begin, however, by briefly describing the refugee system which prevailed during the past four decades. When UNHCR was created in 1951, the main focus was on those fleeing communist persecution in Eastern and Central Europe. Not surprisingly, the 1951 UN Convention relating to the Status of Refugees defines refugees as victims of persecution on grounds of race, religion, nationality, political opinion or membership of a social group. The main objective of the Convention is to ease entry and integration of these refugees in the countries of asylum. The cornerstone of the Convention is the principle of non-refoulement, which prohibits the return of refugees to territory where their life or liberty could be threatened. Despite the Cold War bias, the Convention and its 1967 Protocol remain the only universal instruments of refugee protection and have become the clearest symbol of international solidarity for the refugee cause. 123 States are parties to the 1951 Convention and/or its 1967 Protocol, among the most recent, significantly, being the Russian Federation.
Although the 1951 Convention has many laudable features, its limits became evident when the process of decolonisation in Africa in the sixties and early seventies led to flight of a different type, motivated by violence, rather than persecution, and characterized by large-scale displacement. Although the refugees were generously received in neighbouring countries and assisted by the international community, they did not seek integration but instead chose to return home with UNHCR's help when their countries became independent. The different nature of the refugee problem faced by these countries was acknowledged by the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. This Convention broadened the refugee definition in Africa to include those fleeing war, violence and serious public disorder. It also recognized voluntary repatriation as an important solution to refugee problems.
However, the possibilities for voluntary repatriation were extremely limited during the late seventies and eighties when large numbers of refugees fled wars, fuelled by the rivalry between super powers in Mozambique, Afghanistan, Indo-China, Horn of Africa, Central America and other parts of the world. Nor was there any possibility of settling these refugees abroad. Most of them were forced to live for years in over-crowded camps in neighbouring countries. The Cold War climate hampered international cooperation and did not allow the root causes of refuge flows to be addressed. The emphasis was on treating the symptoms, through asylum and international assistance.
The end of the Cold War has brought about radical changes to this situation. I would like to highlight the four main features of the contemporary refugee problem.
Firstly: many of the Cold War-generated conflicts and disputes have come to an end. From central Europe to Latin America, from Cambodia to the Middle East, old assumptions and structures are being challenged. Efforts are being made, in varying degrees, to establish more democratic forms of government and more open economies. These changes are encouraging refugees to return to their own country. In the past three years, more than 5 million refugees have returned home, among them almost 2.5 million to Afghanistan. Thousands of refugees have returned to Tajikistan, Ethiopia, Somalia, Burundi, South Africa, El Salvador and Guatemala. Earlier this year, UNHCR successfully completed, under the most complex conditions, the return of more than 370,000 refugees to Cambodia. We are now embarking on the return of more than 1.5 million refugees to Mozambique from Malawi, Zimbabwe, Swaziland and Zambia.
Secondly: on a less optimistic note, political and economic reform in the post-Cold War world is proving to be a painful, sometimes violent process, as shown in Haiti, Zaire, Angola and other parts of the world. Even though the super power patrons have withdrawn, some of the wars are dragging on, using the enormous arsenals built up over the years in these countries. In Somalia, and to a large extent also in Afghanistan, violence and anarchy have destroyed much of the semblances of governmental authority. Even in countries, such as Cambodia and South Africa, where there has been progress towards reconciliation, the peace process remains fragile.
Therefore, although many refugees are returning, they are going back to conditions of uncertainty and instability, sometimes even open conflict, to villages which have been devastated, and homes which have been destroyed, with little hope of reconstruction or economic development.
Thirdly: Old refugee problems are being replaced with new ones. There are more refugees today than ever before. When UNHCR was created in 1951, there were one million refugees. In 1989, there were thirteen million refugees. Today UNHCR is helping some 19 million refugees in 109 countries across the globe, from Afghanistan to Angola, from Bosnia to Bangladesh, from Mexico to Mozambique, from Tajikistan to Togo.
The end of super power control has rekindled ancient feuds, rooted in nationalistic, ethnic, cultural and religious rivalries. There are violent clashes in many States, sometimes leading to their break-up. Within these "new" states, more seeds of strife are being sown among insecure minorities. The consequent instability and violence are forcing millions of people to flee their homes.
Fourthly: Political instability in many parts of the world has been exacerbated by the problems of poverty, population pressures and environmental degradation. Political and economic motives for departure are combined in a complex manner, as in the case of Haiti, blurring the facile distinction between refugees and economic migrants. The reality is that contemporary refugee movements are taking place against a background of larger migratory movements. In many instances, refugees are mingled with people who are moving, not in search of safety but of economic prospects. International media and communications have raised expectations of a better future. Modern transport has narrowed the distances. Consequently, the industrialised world finds itself confronted with mixed movements of refugees and economic migrants.
Not surprisingly, the institution of asylum has come under severe strain in many receiving countries in the developed world. In the past, refugees were received with generosity and many were eventually integrated in their new communities. Today, the growing numbers of refugees and migrants, on the one hand, and rising unemployment and deepening economic recession on the other, are leading many asylum countries to question the burden they are asked to bear. The cost of processing asylum applications has skyrocketed, while public acceptance of refugees has plummeted. There is wide-spread concern that the procedures and provisions for asylum are being abused by people who have no valid claim to refugee status. In some countries, asylum-seekers are faced with immigration control measures, in others with racist attacks, in still others with interdiction on the high seas.
The enormous growth of refugee numbers, the complexity of underlying causes, the proliferation of emergencies, the shrinking of asylum opportunities and the expanding possibilities of return home, albeit in uncertain conditions: these have all challenged the traditional approach of international refugee law and policy.
That body of law has tended to be narrow. Because of the strong political and ideological context in which it was initially nurtured, its focus has been on refugees after they have crossed their national borders. Protection concerns inside the country of origin were out of bounds for refugee law. Furthermore, international protection was limited mainly to refugees fleeing persecution. Only in some parts of the world are victims of conflict and large-scale violence who have fled their country also recognised as refugees.
Even more neglected are the protection needs of those who are displaced for refugee-like reasons but who have not fled abroad. According to some estimates, there are between 15 and 30 million internally displaced persons, a figure considerably higher than the global refugee population. Although UNHCR has no general mandate for internally displaced persons, we are increasingly becoming involved with them at the specific request of the General Assembly or the Secretary General, as the UN undertakes a more active role in internal conflict situations. For example, in Bosnia-Herzegovina, we are providing humanitarian assistance and protection to some 2.7 million persons who have been displaced inside the country or are under siege. Yet there is no clear international legal framework or institutional mandate for the protection and assistance of the internally displaced who are potential refugees.
Large-scale repatriation to situations of uncertainty and instability have also served to underline the fact that many refugees remain without national protection even after they have returned home. Many of the Kurdish refugees who returned to northern Iraq were displaced inside Iraq for months in insecure and unsafe conditions. In the Horn of Africa, war and food shortages in the countries of asylum have forced people to return home prematurely to areas still subject to instability. Two years ago, 30,000 Salvadorean refugees decided to return home despite the on-going war between the government and the opposition, FMLN. Whether in Sri Lanka, Afghanistan or South Africa, refugees are returning to volatile security situations. Those who return in the midst of conflict and insecurity need to be protected and assisted. Therefore UNHCR has advocated a legitimate concern for the protection of returning refugees until they are reintegrated in their home communities.
Nor has international law traditionally concerned itself with the responsibility of States to prevent the creation of refugee flows. During the Cold War the reasons for flight were largely ignored. The responsibility of the country of origin in the prevention of refugee problems or in creating conditions to promote return was overlooked. That approach is neither justifiable nor desirable in today's climate of international cooperation.
There is clearly a greater willingness on the part of the international community to collectively address the threat to international security posed by internal conflicts and large-scale population displacements, as in Iraq, Somalia and the former Yugoslavia. There is growing support today for a comprehensive strategy which addresses the entire continuum of refugee flows from causes through emergency response, protection and eventual solution. This means not only responding to refugee situations in countries of asylum, but also preventing and resolving them in the countries from which refugees originate. We must seek to ensure that people are not forced to flee their homes in the first place, but if they are, then their humanitarian needs must be met and conditions created to allow them to return home in safety and dignity. This is the three-pronged strategy of prevention, emergency preparedness and solutions which I have been advocating.
Such a strategy has meant greater involvement of UNHCR in the countries from which refugees originate. As the focus of our activities shifts gradually from the relatively stable conditions in the country of asylum to the more turbulent and often evolving process in the country of origin, existing dogmas and doctrine are being challenged. New dilemmas are being posed, calling for a broader concept of international protection assistance, more responsive to needs inside the country of origin as well as outside it.
Law is a tool of policy. A comprehensive policy and strategy to address the refugee problem must, therefore, be supported by an equally comprehensive legal framework, which, on the one hand, protects refugees and the internally displaced, and on the other, provides a basis for international cooperation to prevent flight and resolve refugee problems. Such a framework can be built by linking refugee law to other areas of law, notably human rights and humanitarian law.
Most contemporary refugee problems result from armed conflict. International humanitarian law should therefore be of increasing relevance both for the protection of refugees caught up in the fighting and for the protection of internally displaced people. An important limitation of humanitarian law however lies in the fact that it does not cover all armed conflict situations. Additional Protocol II to the 1949 Geneva Conventions, which deals with internal conflicts, specifically excludes from its ambit internal disturbances and tensions, such as riots or isolated and sporadic acts of violence.
Of course, the law of human rights is applicable in these situations, as it is generally to refugees and the displaced. However, it is considerably weakened by the fact that governments can derogate from many human rights during a state of emergency, exactly at a time when the need for protecting the individual is the greatest. The U.N. Covenant on Civil and Political Rights contains a derogation clause as do the European and American Conventions on Human Rights. Nor is there any effective international mechanism to question the necessity of governments to resort to emergency powers. Most importantly, there are no adequate means of preventing human rights violations when States abuse their powers. Although, human rights violations have increasingly entered the realm of legitimate international concern, through the adoption of human rights treaties and use of fact-finding and reporting mechanisms, governments frequently hide behind the veil of national sovereignty to evade responsibility for such violations.
Thus, ironically, the level of protection is highest for refugees in their country of asylum, and falls dramatically once they are back over the border. Similarly, protection is high in international armed conflict situations, but significantly lower during non-international armed conflict, and virtually non-existent in situations of internal disturbances and gross violations of human rights.
The protection of refugees and internally displaced persons can be enhanced through a more a holistic approach, which draws together refugee law, human rights and humanitarian law to provide a genuinely comprehensive response. I believe that only in this way can existing or perceived gaps in the law be overcome.
Broadly speaking, the objectives of such a convergence should be three-fold.
Firstly, it must uphold the right to seek asylum and strive to provide protection to all those fleeing violence, conflict and persecution. Thus, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees must continue to be applied fully and liberally. To do otherwise would be to deny the lessons of the past.
At the same time we must recognize that the 1951 Convention, while essential, cannot be an all-inclusive response to protection in the face of large-scale displacement of the kind we are witnessing today. The kind of durable protection and settlement which the 1951 Convention and 1967 Protocol promote is not a realistic option for most host countries shouldering enormous refugee burdens. It should be noted that countries in Africa, Asia and Latin America have usually provided asylum, on a temporary basis, for large groups of refugees, fleeing violence and conflict. Both the OAU Convention, in the case of Africa, and the Cartagena Declaration, in the case of Central America, implicitly recognise that sanctuary can be granted on a temporary basis, until the refugees are able to return home in safety and dignity.
In industrialised countries, temporary protection is a more limited and recent practice. It was introduced in the United States in 1990 in the form of temporary protected status (TPS). UNHCR has promoted the concept of temporary protection in Europe in the context of the Yugoslav refugee problem. The idea has been received positively by most states for this group of refugees. I believe the time has come to give temporary protection a broader, more concerted and coherent recognition as a legitimate tool of international protection in the industrialised countries.
The basic principles of temporary protection should include admission, respect for non-refoulement or prohibition against return to danger, humanitarian standards of treatment, and repatriation when conditions so allow in the country of origin.
I realise that the concept of temporary protection raises a number of issues which require further thought. One key question is for how long temporary protection should continue when the prospects for resolving the refugee-producing conflict are not evident. What additional rights and privileges should be granted in this case? These are real issues which are being discussed by many governments as the conflict in the former Yugoslavia drags on. It does not, however, diminish the value of temporary protection as a pragmatic and flexible tool. Through it, victims of war and violence can find the sanctuary they badly need, while host governments can afford to be more generous in the knowledge of the temporary nature of their burden.
Secondly, the convergence of laws should strengthen protection in the midst of conflict, both for the internally displaced as well as for returning refugees. Certain provisions of humanitarian law and human rights are applicable to internally displaced persons. Analogies can also be drawn from principles of refugee law, particularly to safeguard against forcible return of people to danger. Existing norms must be tailored and guidelines developed to meet the specific needs of the displaced.
There is also a strong need to improve the implementation of existing principles of humanitarian law. As internal conflicts proliferate, humanitarian law is violated with increasing frequency and viciousness in Bosnia and Herzegovina, central Asia, the Caucasus, Somalia and other parts of Africa. The international community must urgently examine the ways and means of strengthening respect for the provisions of the Geneva Conventions and Additional Protocols, which, if heeded, would go a long way towards reducing human suffering and the uprooting of civilian populations. States have a primary and collective responsibility to redress this appalling situation. Their responsibility does not diminish as a result of their non-involvement in, or their remoteness from, a conflict.
All belligerents are ipso facto bound by conventional as well as customary law of armed conflicts and other norms which have acquired a binding force through universal recognition. This responsibility cannot be over-emphasized. It should also extend to non-State entities, as well as to States which have considerable influence, if not control, over them. No belligerent must be allowed to behave as if it were immune from the imperatives of humanity and exempt from national and international accountability. Aspirants to modern Statehood cannot expect international recognition while flouting the minimum norms on which the law of war is based. How can a people or its leadership seek admission to the community of civilized nations if its practices are nothing but a display of barbarity? The quest for national identity is not compatible with the exercise of unbound hatred and mass felony.
The most effective means of protection in times of conflict is international presence. The presence of UNHCR staff and other international organizations has been of critical importance in protecting and assisting refugees, displaced and affected populations in such places as northern Iraq, Bosnia-Herzegovina, Somalia, El Salvador, Tajikistan and Cambodia. Efforts should be made to develop the legal basis for humanitarian access to and international presence among the affected populations. Humanitarian law and human rights provisions create a strong presumption in support of such a principle when civilian lives are in danger.
A major constraint is the view of many governments that access to population on their territory is a fundamental question of national sovereignty. Nevertheless, increasingly, international attention is being focused on humanitarian access to ensure that the protection and assistance needs of civilian population are met in situations of internal conflict and violence. General Assembly resolution 46/182 of 19 December 1991 allows humanitarian assistance to be provided with "the consent of the affected country", rather than at its request.
The increasing willingness of the Security Council to recognise large-scale humanitarian crises as threats to international peace and security is creating new precedents for humanitarian access. On 5 April 1991, the UN Security Council adopted resolution 688, linking human rights violations to threats to international peace and security. It insisted that Iraq allow immediate access by international humanitarian organisations to all those in need of assistance in all parts of Iraq. This resolution was followed by the intervention of the Coalition Forces to create a safety zone in northern Iraq.
In the case of Somalia, total breakdown of law and order, combined with the starvation of the Somali people, prompted enforcement action by the United Nations under Chapter VII of the Charter, in order to forcefully create conditions for the uninterrupted delivery of relief supplies to the starving people.
These events indicate that international consensus is moving in a new direction to find a balance between sovereign rights and individual needs, as well as between principle and practice.
If the first objective of a more comprehensive legal framework should be to strengthen protection of refugees abroad, and the second objective to enhance the protection of returning refugees and the displaced in their own countries, then the third objective must be to prevent displacement, and ensure the right of people to remain in safety in their homes. There are unfortunately too many instances where displacement is not so much a consequence of persecution or conflict, but a deliberate goal. The former Yugoslavia provides a particularly graphic and painful example. There, UNHCR is providing assistance not only to refugees and the displaced, but also to people who are under a direct threat of expulsion either through military attack or through the form of persecution referred to as "ethnic cleansing". And this unfortunately is only one example of the threat worldwide to the human right to remain.
In speaking of "the right to remain", I mean to underline the basic right of the individual not to be forced into exile. In its simplest form it could be said to include the right to freedom of movement and residence within one's own country. It is linked also to other fundamental human rights because when people are forced to leave their homes, a whole range of other rights are threatened, including the right to life, liberty and security of person, non-discrimination, the right not to be subjected to torture or degrading treatment, the right to privacy and family life.
In this age of heightening tensions the primary aim of which is to force one group of people to leave territory shared with another, the international community must ensure greater respect for human rights in general, and minority rights in particular. The challenge is to translate the rhetoric of human rights into practical measures. How do we promote tolerance for diversity? How do we control the abuse of State power? How do we get States to eliminate violations of human rights in their territory and cooperate internationally to reduce "push factors"? How do we foster responsibility as well as international accountability of States as regards the treatment of their own citizens? These indeed are the challenges, as new approaches of law and policy seek to balance humanitarian concerns for refugees with the legitimate interests of States.
To sum up: The challenge of refugee law and policy today is three-fold, covering not only the right to seek asylum but also the right to remain and return home in safety and dignity. The generosity of asylum countries is necessary and welcome but it cannot relieve the pain of exile. The international protection that my Office, in cooperation with countries of asylum, can offer to refugees is not an adequate substitute for the protection that they should have received from their own Governments in their own countries. The answer ultimately is to promote political change and economic development around the world, to support more representative and responsive governments, which respect human rights, protect minorities and seek to meet the needs of their people.
As you begin Public Service Law Week at the Law School, I call on you to make your own contribution to that challenge. As current or future lawyers, as advocates of rights, and leaders of your community, you can play an important role in reaffirming solidarity with refugees at home and abroad, and building a comprehensive and forward-looking strategy to address their problem. You too can show the same courage and commitment to humanitarianism as did the people of Scandinavia fifty years ago.