Niebla Declaration on Revitalizing the Protection of Refugees

Adopted at the Fifth Symposium on International Humanitarian Law, entitled "The Revitalizing of the Protection of Refugees" and held at the University of Huelva from 29 November to 1 December 2001, organized by the United Nations High Commissioner for Refugees and the Seminar on International Studies, with the collaboration of the Spanish Ministry of Foreign Affairs and in commemoration of the fiftieth anniversary of the Geneva Convention relating to the Status of Refugees of 28 July 1951.

On this occasion,

• We reaffirm the validity of the institution of asylum and the Geneva Convention, particularly the principles of non-refoulement, protection, and assistance.

• We reaffirm the necessity for the existence of The United Nations High Commissioner for Refugees and its strictly humanitarian nature, as the agency responsible for assuring that international protection and assistance be provided to refugees, asylum seekers, and all others included under its Mandate. We ask States to accept the commitment to guarantee the effective protection of these people.

• We recognize that, over the past fifty years, the circumstances and conditions of the contemporary world have changed radically from those for which the provisions of the Geneva Convention of 1951 were adopted. An updated interpretation of its norms, therefore, is necessary, as are the search for legal solutions to present problems and the establishment of preventive measures that dissuade massive waves of migration. To advance these aims, the international and national mechanisms that protect human rights, including economic and social rights, must be strengthened, and their functioning enhanced, including the establishment of the International Criminal Court.

• We consider that States with greater economic resources and of democratic tradition must contribute to the prevention of conflicts and situations that inevitably lead to mass influx. Through active development policies destined to strengthen institutions, these States can contribute to the attainment of more democratic structures, to the creation and extension of mechanisms that protect and defend human rights, and to the fight against discrimination and inequality.

In this regard, WE DECLARE the necessity for consideration of the following criteria to revitalize the protection and assistance of refugees:

• States should apply broadly and generously both the definition of refugee and the conclusions of the Executive Committee of The United Nations High Commissioner for Refugees. The United Nations, in turn, must formulate a series of fundamental principles that provide for the protection and assistance of all persons who feel compelled to leave their place of origin or residence as a consequence of precarious life conditions or widespread violence.

• States should be conscious of the fact that mass influx due to violence or to the violation of human rights cannot be sustained by neighbouring States alone. On the contrary, a principle of international solidarity must be invoked, whereby the most developed States contribute the greater share of economic resources, in consonance with their contribution to the budgetary system of The United Nations. This principle of solidarity should establish reserve funds for unexpected situations that endanger not only the lives of many people but also international peace and security.

• States, international institutions, including The United Nations High Commissioner for Refugees, and in general all persons responsible for armed elements must preserve the civil nature of asylum. To safeguard the physical security of refugees, displaced persons, and humanitarian personnel, armed elements must be kept separate from the civilian population. This separation requires the cooperation of the entire international community.

• The United Nations High Commissioner for Refugees, in extreme circumstances and in cooperation with the international community, must consider the necessity for having recourse to security personnel. Amidst massive migrations of displaced persons, this personnel would contribute to the disarming and separating of armed elements and to the safe keeping of arms seized. The United Nations High Commissioner must likewise train its humanitarian personnel to identify differing armed elements in conflict, since the Mandate for the High Commissioner is humanitarian and the status of refugees is strictly civil.

• Temporary Protection can constitute a useful and effective emergency mechanism to provide immediate protection in situations of mass influx. If, however, the situation in the State of origin does not allow return within a reasonable period of time, Temporary Protection must give way either to the Status of Refugee or to the Status of Subsidiary Protection, the latter to be clearly distinguished from Temporary Protection.

• Given the complexity of crises that lead to mass influx (incompetence of the State of origin, terrorist group activities, paramilitary forces, untrained militia, organized international crime, corruption, underdevelopment), the solution to these undesirable occurrences lies in the taking of immediate measures, at once direct, effective, and destined to protect and assist victims, while also exacting responsibility for the corresponding violation of obligations established by International Law.

• Refugee law must include the responsibilities incumbent upon both the State of origin and the States of arrival, as well as groups holding territorial power. These responsibilities, primary and secondary (cooperation to end the violation, refusal to recognize the situation created, and the denial of aid to the responsible Nation so as to prolong the situation), must be stipulated in and guaranteed by International Law.

• To this end, we invite all competent international organizations to create Truth Commissions, entrusted with the study of situations that cause or may cause the flow of refugees and, so as to resolve these situations, the mediation between the authorities concerned and the peoples or populations threatened. An International Compensation Fund ought also to be established to allow compensation for victims.

• The right not to be displaced arbitrarily is a right recognized by international norms. In consequence, refugees must not be created by the deliberate action of governments. Forced exile, expulsion, and arbitrary or discriminatory denationalization create refugees and violate multiple, internationally-guaranteed human rights. Such actions must be viewed as prohibited by International Law.

• The provisions of the Geneva Convention of 1951 and the Protocol of 1967 must be interpreted and applied flexibly so as to permit just responses to the needs of specific groups. It seems necessary to strengthen and develop articulated norms that protect more fully women refugees and asylum seekers, in view of the interpretation that women who suffer practices contrary to internationally recognized human rights, namely cruel and inhuman treatment, can be considered a specific social group in the terms established by article 1.A of the Geneva Convention of 1951. The General Assembly of The United Nations, in addition, should articulate and endorse a Protocol for the Convention on the Rights of Children, thereby developing and clarifying, as regards the protection of refugee children, article 22 of the Convention.

Niebla, 1 December 2001