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Presentation by Erika Feller, Director, Department of International Protection, UNHCR: Alternative Futures: Developing an Agenda for Legal Research in Asylum: The 1951 Convention and its 1967 Protocol - Reinvigorating the Refugee Protection Regime

Speeches and statements

Presentation by Erika Feller, Director, Department of International Protection, UNHCR: Alternative Futures: Developing an Agenda for Legal Research in Asylum: The 1951 Convention and its 1967 Protocol - Reinvigorating the Refugee Protection Regime

1 January 2000

What is the Convention?

It is oft repeated, with justice, that the 1951 Convention is the foundation of refugee protection, the one truly universal instrument setting out the baseline principles on which the international protection of refugees has to be built. These include that refugees should not be returned to face persecution, or the threat of persecution (principle of non-refoulement); 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 cause of tension between States; that since the grant of asylum may place unduly heavy burdens on certain countries, a satisfactory solution of the problem of refugees can only be achieved through international cooperation; that persons escaping persecution cannot be expected to leave their country and enter another country in a regular manner, and accordingly, should not be penalised for having entered into or for being illegally in the country where they seek asylum; that given the very serious consequences the expulsion of refugees may have, such a measure should only be adopted in exceptional circumstances directly impacting on national security or public order; that cooperation of States with the High Commissioner for Refugees is essential if the effective coordination of measures taken to deal with the problem of refugees is to be ensured.

What the Convention is not:

If the Convention principles are the baseline, they are also, in many respects the basics only. The Convention is no panacea for all the problems of displacement. Root causes are outside its scope. If the notion of burden sharing is inherent in its terms, there is no practical underpinning of it through specific provisions. Absent, too, are provisions on family reunification, access to procedures or the grant of asylum. There are no measures tailored to the specific needs of women and children, just as there is only very little development of the solutions aspect of refugee protection. While the Convention could be applicable to large scale influxes, just as to individual arrivals of refugees, in practice States have found it too difficult or onerous to adhere to its provisions when faced with sudden mass arrivals.

There are clearly gaps in the Convention regime. To admit this is not, though, to go that one unacceptable step further and to hold the convention accountable for what it has not achieved, in relation to problems for which it was never intended as a response. There has over recent times, been a growth in the critiques levelled directly at the 1951 Convention. It has been variously labelled outdated, unworkable, irrelevant, or an unacceptably complicating factor in today's migration environment. It is alleged to be over rigid in the face of important irregular migration challenges. In particular, several States have in this connection deemed it an instrument unresponsive both to the interests of States and to the real needs on the ground, and therefore one from which they are considering withdrawing. The Convention was never, though, conceived as an instrument of migration control. Its terms impact, it is true, on the sovereign right to regulate entry across borders, but with a view to introducing a needed exception for a clear category of persons. States' inability otherwise to control their borders, or to deport aliens with no valid claim to continued residence on their territories, should not be blamed on the Convention.

This being said, migration trends are very much part of the environment in which refugee protection has to be realized, and they are, from the protection optic, a seriously complicating factor. I will return to this in a moment, but let me just make a brief point about evolution in the refugee situation generally. Transformations in the international political system following the end of the Cold War have significantly altered the context for refugee protection. The so called humanitarian space is much diminished, with UNHCR and other humanitarian organizations having to operate more and more frequently in conflict situations awaiting political, as well as military, resolution. There has been a distinct shift in the nature of armed conflict, with a growth in internal, inter-ethnic conflicts characterized by massive population displacements, which are not their unintended result, but their actual objective. Refugee movements now often result from "de-structured conflicts", where humanitarian agencies, including UNHCR, are left negotiating not with governments or even national liberation groups, but as one journalist put it, "with clans, bandits, militias, and weekend fighters". This environment is, in itself, a challenge to the principles. The "voluntariness" aspect of solutions inevitably, for example, assumes quite a relative place. The language of the Convention, where it inclines towards individual rights and has a focus on specific grounds for the grant of status, going beyond humanitarian urgency, can be difficult to reconcile with the exigencies of asylum in ongoing conflict. A number of States also suggest, particularly (but not only) when faced with conflict-precipitated, large-scale arrivals, that the Convention's obligations are anyway not "meetable" or are unrealistic and therefore to be repudiated.

Protection principles and the regime of asylum State responsibilities cannot effectively be viewed in isolation of the broader framework in which they will be applied. Refugee problems are not only closely tied to the spread of inter-ethnic conflicts and the capacity of States to respond to and resolve them, but also to globalization and the management of its migration aspect. There is no doubt that States have a serious apprehension about "uncontrolled" migration in this era of globalization - globalization in communications, in economies and indeed in migration. The more freely capital and goods move around the world, the more rapidly information and people can travel, the harder it becomes to inhibit the movement of people. The availability of one part of the world to another - with the expansion of global access - is a clear encouragement to the would-be migrant and opens up more possibilities for the forced migrant with the result that the distinction between asylum-seekers and other forms of disadvantaged migrants is being eroded. Globalization has two sides. To governments aiming at minimizing the effects of globalization of migration, asylum is an exemption that allows too many people through the door. The reality is that the drive towards greater economic integration and the priorities generated by the pursuit of these objectives arguably have a much greater influence on national priority-setting than do humanitarian obligations.

A number of very telling observations on these, among other related issues, are to be found in an article in The London Review of Books (3 February 2000) titled "The Uninvited", by Jeremy Harding. One conclusion he reached is that asylum-seekers are less and less welcome in many countries, where they are not being invited via resettlement programmes, visas and temporary admission from countries in crisis. If they enter by other routes, he observes, they face the consequences, which include that their motives will be seen as economic and the fact of illegal entry will prejudice their case.

Trafficking as a compounding factor:

One problem is that many refugees, of necessity, not only come uninvited but more and more do so via traffickers. Trafficking, or human smuggling, is a compounding feature of the migration landscape. Harding aptly notes that there are "few Schindlers among the traffickers". Despite, though, all the evils associated with trafficking and traffickers - their criminal activities and the abuses which refugees suffer at their hands - it is also true that, increasingly, being smuggled to sanctuary has become an important option for asylum-seekers. Traffickers provide a service for desperate people. It is a service, though, which carries a price tag. An asylum-seeker who resorts to a trafficker can seriously compromise his claim in the eyes of many States. As Harding has commented, this leads to an imputation of double criminality: not only do refugees flout national boundaries, but they consort with criminal trafficking gangs to do so, so their claims must be bogus and measures which restrict elementary privileges must be justified. "To be an asylum-seeker is to be a stranger on trial", suggests Harding. "He is accused of nothing more palpable than his intentions, but these are assumed to be bad and the burden of proof rests with the defence."

Costs of Asylum:

If migration is a singular feature of the changed environment for refugee protection, another is the more and more unfavourable cost/benefit equation of asylum, when seen from the State perspective. There was a time when the benefits of offering asylum to refugees arguably at least, for many States, outweighed their costs. Where refugees were culturally similar, easily assimilable, helped to meet labour shortages, arrived in manageable numbers and, as an extra plus, reinforced ideological or strategic objectives, the policy was one of generous admission. Today in the reckoning of States, the costs are to the fore. Many States assert that the grant of asylum is potentially very costly and in support of this stance, governments point to the economic burden of asylum, together with competing national priorities for limited resources; they point also to the incalculable environmental damage produced by large concentrations of people inhabiting areas ecologically unable to sustain them; to concern about abuse of established systems, circumvention of legitimate border controls and back-door migration; to the costs of refugee status determination processes or to inequitable global burden-sharing; to security concerns, both at the State and at the local law and order levels; to the tensions caused in relations between two, or even more, States; and finally, not least, to the tensions caused within a State through insensitive mixing of cultures, through disturbance of delicate ethnic balances or through exacerbation of xenophobic sentiments, all leading to social and political unrest.

The re-shaping of asylum policies:

One result of this combination of factors - the evolving refugee situation, the threat of uncontrolled migration, together with the perceived cost of asylum - has been the re-shaping of the asylum policies and practices of many states. Broadly speaking, two parallel trends have emerged, which have impacted negatively on the accessibility of asylum and the quality of treatment received by refugees and asylum-seekers. The first is the growth in an overly restrictive application of the 1951 Refugee Convention and its 1967 Protocol, coupled with a formidable range of obstacles erected by States to prevent legal and physical access to their territory. The second is the proliferation of alternative protection regimes of more limited duration and guaranteeing lesser rights when compared to those of the 1951 Convention. There has even been in some States a gradual movement away from a legal, rights-based approach to refugee protection altogether, with a growing preference by some governments for discretionary forms of protection that provide lesser safeguards and fewer rights to people of concern to UNHCR.

Much ingenuity is shown to develop new forms of protection. It is somewhat paradoxical that in regions where accession to the 1951 Convention is widespread, States have chosen to create a range of alternative statuses or devices under domestic law to provide for prolonged stay. Temporary protection, "B" status, humanitarian status, exceptional leave to remain, stay of deportation and toleration permits are but a few. The present situation is marked by little harmonization of asylum policies, even within regions, with marked differences among countries and within countries as to who gets protection, what kind of support is permitted through the decision-making processes, and what are the social consequences of different kinds of status. There is clearly a risk of "unseemly competition in inhumanity to asylum-seekers", as Harding put it. Merely to tolerate the stay of those entitled to international protection is pushing the acceptable limits of these devices. The language of toleration is inconsistent with the language of rights.

Indeed, in parallel with, and not least in part as a response to, these various approaches by States, there has been even more resort - by failed asylum-seekers, by lawyers seeking protection solutions, and by judges considering protection needs - to human rights instruments as an alternative source of protection. There is a truly impressive body of jurisprudence being built up by bodies such as the European Court of Human Rights, or the CAT Committee, around the non-refoulement or non-expulsion provisions of the human rights conventions which these bodies respectively oversee. As a result of cases such as Soering, Chahal, D v. UK, and Ahmed v. Austria, aliens who may have no rights to admission under domestic law, cannot in certain circumstances be expelled on the grounds that the person would , in the country of origin, risk ill treatment proscribed under human rights law.

Two Different case-scenarios on the future of the 1951 Convention:

If this is the point we have reached, where might we be going from here? I want to turn first to the worst case scenario. This would, in its end result, have the Convention rendered redundant in today's world, or worse, disappear altogether.

To develop this scenario a little, in parts of the world where protection is legislated for, there is more and more resort to complementary forms of protection. As already mentioned, there are now a plethora of alternative forms of protection. There are also variations of these different forms - TP for Bosnians was not the same as TP for Kosovars, and what humanitarian evacuation is a variant of has yet to be determined. In parallel, there has been the development of "notions" or "approaches" which have substituted in effect for the application of the Convention by giving it a subsidiary place in the State's response possibilities. Here I am talking of the safe country notion, or the internal flight alternative concept, for example, which, rather than serving an evidentiary function within a full RSD process, constitute instead the rationale for non-resort to the Convention procedures in the first place. At the upper end of questionability with these various developments has been greater and greater resort to State or ministerial discretion as the final arbiter of a State's responsibilities. Where all this couples with an increasingly restrictive approach to interpreting the definition, and where in at least one region, countries are legitimating through law the exclusion of certain classes or nationalities of persons from a right to access existing asylum procedures, one could predict an ever diminishing use of the Convention, with, eventually, its total eclipse. Should this happen, although subsidiary forms of protection may provide the prohibition on removal (refoulement), the rights of people allowed to remain will most likely be quite inferior to those of recognized refugees. While a class of persons is created, a whole range of measures established under the 1951 Convention, broader in scope than merely prohibiting expulsion, may not necessarily come to be. These measures include those, for example, which would require the host State to issue identity and travel documents to the protected person (Article 27 and 28); to ensure that there is equal access to primary education (Article 22), labour laws and social security (Article 24) without discrimination between the refugee and the national. Measures in the field of housing (Article 21), employment (Article 17, self-employment and the liberal professions (Articles 18 and 19) would also be casualties.

These convention requirements of States derive from human rights notions, specifically tailored through the 1951 Convention to the refugee situation. The concern about marginalizing the Convention might arguably be less if resort to alternative human rights instruments were, today, to offer a comparable security of stay and access to basic rights. The reality is, though, that adjudicators of human rights responsibilities have not - yet - taken human rights law sufficiently in this direction. ECHR jurisprudence, for example, is silent about the status of those whom it protects and the necessary subordinate social rights. Often States are left simply to adapt their immigration regulations to accommodate their duties under the non-refoulement clauses of human rights instruments - Here we come to a dilemma, while human rights instruments offer potential as protection instruments for refugees, they also carry with them dangers. Resort to human rights instead of refugee protection concepts as the basis for permitted stay, in the absence of any consequential obligations in respect of support and integration, could prove the politically more popular alternative, while it would at the same time be most disadvantageous for refugees.. From this perspective, human rights instruments could, without further work pose a threat to the vibrant survival of Convention refugee status in the modern world. This would truly be a profound paradox!

Much of what I have been describing to this point is, of course, a scenario most relevant to the developed world and to countries where refugee protection has a strong legislative base. In countries where protection is not legislated for, even accession to the Convention would be an ever more remote possibility. Telling in this regard is the repeatedly offered observation of the Indian government, including at UNHCR's Executive Committee meetings, that as the Convention seems to be less and less relevant for its main traditional supporters, any incentive for States such as India ever to accede is fast receding. In this worst case scenario. Therefore there is the spectre of no more States acceding - that is, agreeing to be part of a formalized regime for international cooperation for refugee protection - while simultaneously the new concepts and practices of refugee protection (such as the safe country notion, the internal flight alternative, and interception) gain ever more global acceptability. Restrictive approaches export well and indeed are already being replicated in regions where laws and structures are only now being put into place. They are also being replicated in regions where their effect is not cushioned or mitigated in any way by a culture, much less a regime, of human rights protection.

The Way Ahead:

The better case scenario might well be the following: With the plethora of different forms of protection, coupled with the ever more ingenious trafficking of persons confusing rather than improving the system, we are already seeing signs of frustration. Countries are coming to appreciate the need to rationalize and harmonize approaches, certainly at the regional level but, increasingly, also among regions. Harmonization may well run in tandem with a growing acceptance by States that it is no longer feasible - much less demographically sound - to coexist without a considered migration policy. Most population projections for the developed world forecast a greater and greater imbalance between young and old in these countries. A truly comprehensive and integrated approach must include a normative framework for managing migratory movements. In a global economy, it will become increasingly difficult to maintain open borders for the free movement of capital, goods and services, while pursuing a "zero immigration" policy. International migration should be viewed as a positive force of progress, where both countries of origin and of destination stand to gain from the orderly movement of people. The current demographic trends in Europe, for example, are quite telling. They suggest that European States may need some 135 million immigrants by the year 2025 in order to compensate for their ageing population. This reality not least the background to the debate currently running in the German Bundestag about the introduction of a migrant worker policy for that country.. As UNHCR has recently had cause to comment, constructive and visionary immigration policies could result in an easing of the current pressure on asylum systems and switch the approach to where it should be - managing migration through a migration policy and managing asylum through an asylum policy, both based on the fundamental values and interests of our societies.

In this best case scenario, what we could have would be a revitalization of the Convention regime. Its centrality would be preserved but it would be an instrument buttressed by more enlightened migration policies and supplemented through harmonized additional measures where it is weakest.. As Stephen Sedley has observed, "unless [the Convention] is seen as a living thing adopted by civilized countries for humanitarian ends, constant in motive but mutable in form, the Convention will eventually become an anachronism."

With this as a goal to work towards, UNHCR has identified four global protection objectives for the coming period:

1. The first is improving the quality of actual asylum enjoyed, including by working to contain further reductions in the entitlements of asylum-seekers, and the spread of deterrence initiatives, as well as by improving the physical security of refugees. Here the objective is to help States to devise a principled approach to managing asylum; built on the first instance around the 1951 Convention protections but relying, where necessary also on the related human rights protections, which I will come back to.

2. The second objective is revitalization of the protection regime we already have. UNHCR's starting point remains that a less rigid and more principled application of existing instruments would go a long way to bridge perceived protection gaps. This position might be said to underlay the EU Presidency Conclusions of the Tampere European Council Summit in October 1999, where all 15 Heads of Governments of the EU countries set a positive political tone for the development of a European asylum system by recognizing the primacy of the 1951 Convention, including its full and inclusive application. For UNHCR this means its application to actual or potential victims of persecution in the context of war or conflicts, as well as in situations where persecution emanates not only from the Government, but also from de facto authorities or other non state agents. groups against whom the Government is unable or unwilling to protect. Having said this, UNHCR also appreciates that the Convention does not cover all situations of displacement today, and that there is a corresponding responsibility on us to work with States to supplement - though, to repeat, not to replace - Convention principles with new approaches to offering protection.

Temporary protection is a case in point. From the State responsibility perspective, the principle of non-refoulement, the inherently temporary character of refugee protection, and the continuing need for surrogate protection, objectively assessed, are together the most important factors which states generally accept should determine their asylum responsibilities. This understanding of the limits of their responsibilities underpins current efforts by States to try and give doctrinal content to temporary asylum or protection regimes for mass influx situations. The practice of temporary protection is a reality of quite longstanding in many parts of the world. Taking into account its ongoing conceptual development within Europe (and indeed elsewhere), as well as the important role temporary protection can play as a means of ensuring immediate protection in large scale influxes; taking also into account that the inclination of States to offer protection to large numbers will inevitably be conditioned by how much of a burden this will become and for how long; the fact also that in most mass exodus situations, the only realistic solution for the large majority is return in safety when conditions so allow; and noting the desirability of not allowing prolongation of exile for reasons unrelated to fear of persecution or insecurity, when local integration and resettlement for the majority are not available solutions - the way forward in UNHCR's view is to develop TP not as an exception to the asylum regime, but as an interim protection measure to be coordinated with and through its complementary character to become part of the protections of the 1951 Convention. For UNHCR, TP is a flexible and pragmatic tool for affording protection to people in need, without necessarily leading to permanent asylum. It has an important place as an interim protection measure, and one essential component in a comprehensive approach based on burden-sharing and international solidarity. What is needed are better guidelines on how and when a TP situation may be declared, how to terminate it, and when to conclude that return should or should not be pursued. The indicators of safety have to be made more precise, and the role of voluntariness as an aspect of return in temporary protection situations needs to be better defined. Such guidelines could well take binding form at some point through an instrument on temporary protection.

3. The third protection objective is to achieve consistency between regional approaches and international standards. There is a need for flexibility in UNHCR's means of securing protection in the different regional contexts, while maintaining its core mission and identity. Regional or subregional actors that UNHCR will have to engage with are taking on more importance, relative to other international or global actors. The EU, OSCE, SADC, OAU or ECOWAS are all playing a growing role in refugee protection. This is a particularly relevant objective in Europe where the EU member countries are in the process of drafting a series of binding directives or instruments on asylum related matters for the European realm. Regionalization of financing is, incidentally, a concern starting to materialize;

4. Finally, there is the imperative of revitalizing partnerships in support of the international refugee protection system. UNHCR has been exploring, and continues to explore, with non-traditional government partners, with the NGO community and also with the corporate sector the scope for working better together to improve the protection climate. There is, too, a need for UNHCR to explore more aggressively the opportunities for a cooperative relationship with our organization partners, particularly where migration and refugee flows merge.

I want, now to return briefly to the human rights angle of our objectives, which cuts across them all, even it is particularly relevant to our goals of better asylum. Management and revitalizing the protection regime generally. UNHCR sees a growing need to foster greater consistency and complementarity between human rights instruments such as the European Convention on Human Rights or the CAT Convention, and the 1951 Convention. As mentioned earlier, pursuant to the now quite established jurisprudence of these Conventions, aliens who may have no right to admission or stay under the provisions of domestic law can avoid expulsion where there are serious grounds to fear proscribed ill treatment in the country of origin. But this is not enough.

The challenge now is to strengthen the complementarity of human rights protections and refugee protections so that the former serve to advance, deepen and broaden the concept of protection, rather than, as foreshadowed, marginalize the 1951 Convention. How can complementarity be promoted? While clearly human rights instruments, such as the do not have as a central purpose the interpretation of the Refugee Convention per se, the problems of discrimination encountered by refugees post-recognition may well, for example, engage Articles 3, 6 and 8, as well as Article 13 and 14 of ECHR, when taken together with other Convention provisions. Similarly , at the pre-recognition phase, although Article 3 has been used as a "safety net" to prevent refoulement, there is also potential for its use to measure whether an asylum State's "package" of reception arrangements meets an acceptable threshold of treatment (ie. that the combined effect of different reception measures relating to housing, employment, social welfare, health care and education does not amount to inhuman or degrading treatment in violation of Article 3). These are among the directions we would hope the jurisprudence might go.

Concluding thoughts:

The better case scenario takes as its starting point that the 1951 Convention is far from obsolete, even if in some respects it is incomplete. Might we envisage somewhere down the line protocols on mass influx and temporary protection, for example? Inter-State cooperation, or burden sharing, is another area where the Convention's preambular references could well benefit from being given specific context. Special protection measures for women and children, procedural requirements for refugee status determination, family reunification, and voluntary repatriation are other areas where a progressive development of international refugee law, in one manner or another, would be useful.

Refugee law is not a static but a dynamic body of principles. As with all branches of law, it has, and must retain, an inherent capacity for adjustment and development in the face of changed international scenarios. UNHCR's approach to promoting this development rests on the understanding that refugee protection is first and foremost about meeting the needs of vulnerable and threatened individuals. These needs of course, have to be accommodated and addressed within a framework of sometimes competing interests of other parties directly affected by a refugee problem. These include States, host communities and the international community generally. The refugee protection regime has to balance appropriately all these rights, interests and expectations. UNHCR has a moral, legal and mandate responsibility to foster this process of developing new approaches, not least to provide a viable alternative to "ad hoc humanitarianism" with all its limitations. The objective in so doing is not to set legal standards which would effectively lower the international protection paradigm. Rather, the intent is to strengthen the available protection modalities, by having them more effectively take account of the exigencies of the environment in which the protection regime has to operate today.

Increasingly, transformations in political, economic and social realities around the world are challenging the modalities of refugee protection and the application of the regime of principles. A sine qua non for the renewal of protection is the establishment of a structure of thought and a body of principles which meet the challenge of today's conditions.