Address by Ms Erika Feller, Director of the Department of International Protection, UNHCR, to the First Meeting of the Australia New Zealand Chapter of the International Association of Refugee Law Judges (IARLJ) (Auckland, 10 March 2000)
(Mr) Chairman, Madam Chief Justice, Distinguished Justices and Judges, Ladies and Gentlemen.
It is a great honour and pleasure for me to participate in the first formal meeting of the Australasian Chapter of the IARLJ. My thanks go to the New Zealand Refugee Status Appeal Authority for hosting this important event and I would like to thank you, the Judges and Authority Members for finding time from your busy schedules to be with us today. As some of you know, UNHCR has worked very closely with the Judges Association since its first meeting in London in 1995. It has now grown to a truly international association with a network of judges from more than 50 states and representing all regions. Over the last 5 years, UNHCR has joined forces with the IARLJ in many capacity-building activities and we are pleased that this practical relationship was formalised by a Memorandum of Understanding signed last year.
Clearly, from the existence of the IARLJ, its proliferating chapters and indeed by the attendance here today for this inaugural meeting, refugee law issues are very much a preoccupation of national lawyers and judges. There are those who may argue that this is for the worse; that refugee law was not drafted by or for lawyers to interpret, but rather for governments flexibly to apply, and that, in the hands of the legal profession, it is even inadvertently becoming, as much an instrument to restrict rights as one to guarantee they will be respected. Let me hasten to add that, while I agree that in some instances, over-legalistic approaches have become a complicating factor in the present restrictive climate for refugee protection, nevertheless I belong to those who believe, overall, that careful legal scrutiny is fundamental. In this presentation, I hope to explain why.
Your decision to form a Australia New Zealand Chapter of the IARLJ comes in the era of globalization - globalization in communications, in economies and in migration. As Mario Vargas Llosa recently said: "Why should justice be excluded from the general trend of globalisation that has made the nation states of the 19th century interdependent today in science and technology, commerce and culture?"
I would like to take a moment to situate this meeting in the broader context of the significant challenges facing refugee protection today. There are few, if any, parts of the world that do not either produce or receive refugees, often under graphically horrifying circumstances - be it the senseless brutality in Sierra Leone; the calculated atrocities in Kosovo; the wanton destruction and violence in East Timor; the brutal war in Chechnya; or the seemingly interminable cycles of violence, displacement and suffering in Afghanistan, the Great Lakes of Africa, the Caucuses region, or Colombia.
Whilst many states, including those with limited resources and competing internal demands, have honoured their humanitarian obligations to refugees and stateless persons with a compassion and generosity that exceeds their means, there are as many, if not more, that have not. 138 states have expressed their commitment to protecting refugees by acceding to the 1951 UN Convention relating to the Status of Refugees or its 1967 Protocol, which together constitute the most universal refugee law text that exists. In reality, however, there is a large gulf between those principles and their implementation on the ground.
Systematic violations of human rights, blatant disregard of humanitarian law in conflict situations, wholesale expulsion of populations and large scale ethnic cleansing continue to cause displacement jeopardize refugees in asylum countries and make solutions even more elusive. The civilian character of many refugee camps and settlements remains compromised, not least through the unwillingness of some governments to place refugee camps away from borders or the lack of commitment of others to address the problem of militarisation of camps within their territories. In many refugee situations, the vulnerability of women refugees to sexual violence and children to exploitation and abuse remains unaddressed in any systematic and effective way.
A parallel and worrying development has been the growth in a number of countries of restrictive asylum systems, marked by contestable interpretations of the refugee definition, barriers to accessing asylum procedures and substitution of discretionary forms of protection for protection based on universal principles. Interdiction or interception of persons, including refugees, trying to enter a territory is a growing practice. While every state has the sovereign responsibility to protect its own population as well as its borders from abuse, interdiction policies which preclude access to effective protection systems for self serving reasons and in the absence of adequate judicial safeguards cannot be regarded as compatible with international obligations. A ruling of the US Supreme Court in 1993 which upheld the validity of the US interdiction policy of Haitian boat people has set a most unfortunate precedent. The Court held that the US' obligations under the 1967 Protocol to the Refugee Convention were not engaged as long as an asylum-seeker remained on the High Seas and had not entered the territory of the State - even when it was the US authorities themselves who had blocked access to the State's territory and jurisdiction. Interdiction of this sort poses a threat to a fundamental premise of international refugee protection - that no-one shall be expelled or returned (refouler) to a place where his/her life or freedom is at risk.
Asylum in another country for a shorter or longer period is still the most viable option for many of the world's forcibly displaced. This is why UNHCR, as the appointed guardian both of refugee protection and the legal framework of principles contained in the international refugee instruments, insists that the asylum gate should remain open to those who need and deserve it. We do so in full recognition that maintaining a credible and humane asylum policy carries with it costs for any host state and its community. States seeking to restrict asylum options frequently claim that these options are necessarily limited by the economic burden of offering asylum, as well as by competing national priorities for limited resources. Security concerns, inter-state tensions, backdoor migration, social and political unrest and environmental damage - are all cited as "negative" costs in the asylum ledger. A parallel and equally worrying development is the growing incidence of racism, xenophobia and intolerance directed to refugees, asylum-seekers and foreigners in general. This carries political costs and has become in some countries a negative force for change.
Australia and New Zealand are blessed with an island geography. They do not receive the numbers of refugees seeking entry to and indeed accepted by many other states. Nonetheless, the arrival of asylum-seekers to this region particularly by boat continues to capture quite a degree of attention. It has also precipitated some quite far-reaching legislative changes, notably in Australia, which are being followed very carefully by UNHCR.
In this regard, though, New Zealand and Australia are not alone. Their widespread concern about proliferating irregular migration and people smuggling has been experienced by many other developed countries, for a number of years now. And it is true that asylum procedures are being misused by economic migrants or others trying to establish new lives for genuine, albeit not refugee-related, reasons. In response, a variety of increasingly restrictive measures have been employed to stem or deflect the numbers of people seeking access to national asylum procedures. Many states are now working with a range of both practical and legal devices to prevent asylum-seekers and refugees from gaining a legal and physical foot-hold in the asylum country. These typically include rigid time limits for filing asylum applications, alternative statuses to refugee status with lesser permanency entitlements attached, and inappropriate use of otherwise helpful notions such as "safe third country", "internal flight or protection elsewhere alternatives" or "manifestly unfounded claims". To expedite the processing of claims and cut costs, safeguards against errors in decision making are being chopped, including judicial review possibilities. The use of detention, including detention which is arbitrary and/or which takes place in quite degrading conditions, is also being used in a number of countries as a deterrent to would-be asylum applicants.
Many of the measures being taken to respond to migration concerns, including those I have just described, are formulated in quite restrictive legislation and a maze of subsidiary regulations. Taken collectively and depending on their application, they can serve as a formidable barrier for genuine refugees to overcome. In this sense, instead of the law being used as a humanitarian instrument to protect people in accordance with international obligations, it becomes a shield to deflect those very same obligations.
UNHCR does not contest that the problem of irregular migration is a serious one for States, that many asylum seekers are misusing asylum systems in developed countries, or even that the principles on which these systems are based may not respond fully to all of today's protection challenges. The law must be allowed to develop in a way that remains principled and true to its original object and purpose and yet is sufficiently pragmatic and responsive to the practical challenges faced by states. To maintain this delicate balance, the Judiciary and Tribunal Members in both countries have key roles to play - albeit at different stages of the national refugee procedure.
In refugee status determination procedures, your Review and Appeals bodies are crucial to the integrity of national systems. These bodies should preferably remain independent from the executive, be able to exercise judicial or quasi-judicial powers in their decision-making, and ideally, be able to provide formal guidance to the primary eligibility body through decisions and practice directions. This has a normative effect and is helpful for good administration and justice in the system as a whole. Provided the Tribunals are adequately resourced and they are permitted to function fairly, independently and effectively, then the role of the ordinary courts in refugee status determination should be largely confined to judicial review and to standard-setting on issues of major legal significance.
It is, though, a reality that the number of such standard setting issues requiring judicial interpretation is growing. Judges and Tribunal members are, in effect, being called upon to respond to the evolving nature of forced displacement. If the "classical" refugee was a victim of individualized and targeted persecutory actions by State authorities, increasingly the refugee of today is someone fleeing persecution or serious danger in the context of conflict. If a recognized State entity was traditionally the source of the threat, more and more the persecutors are persons or groups acting independently of any State directives. The many different types of conflict today, taking place within dysfunctional, disintegrating or newly forced States, are matched by a proliferation of protagonists ranging from paramilitaries to armed separatist groups, guerrillas and criminal gangs.
Increasingly, national courts in asylum states are being asked to consider novel issues such as: are the victims of violence and persecution by non-state actors entitled to protection as refugees in another state? ; can the notion of "persecution" and the ground of "social group" in the Refugee Convention be reasonably extended to protect women from gender-related violence, not least rape in the context of conflict but also, perhaps, harmful traditional practices or even domestic violence?; if only part of the state of origin is affected by conflict then how far are the victims of violence and persecution required to seek protection inside the state before a claim for refugee protection will be entertained in an asylum state?
Refugee cases involving the national security of the host state or the criminal character of an asylum-seeker have proved particularly taxing for Judges, not least because of the often politicised and emotive nature of these cases. The Refugee Convention was not intended to protect people whose presence is deleterious to the host state. It also expressly excludes from protection, people whose serious criminal conduct dis-entitles them. Problematic legal questions, both of a substantive and procedural nature, include what constitutes a threat to national security and how far should the Courts intrude on this sensitive area of Executive power? As regards asylum-seekers whose own criminal conduct may exclude them from protection, Judges will need to decide the substantive scope of "serious non-political" crimes or "crimes against humanity"? There is often no clear demarcation between the criminal and political elements of a claim by a hijacker and should a fund-raiser who is affiliated to a terrorist organisation be excluded simply by virtue of that association?
Such cases are often controversial politically and can have a polarising effect within the host state - as NZ participants will no doubt recall from the case of the Irish asylum-seeker, Mr Butler. Dispassionate supervision by the Judiciary can in the first instance de-politicise and de-dramatise such cases and can help to strike the proper balance between fairness and the interests of the host State.
On a procedural issue, in which judicial standard setting is also crucial to a protection sensitive outcome, Judges have also to deal with complex questions relating to the standard and burden of proof in asylum cases. Refugee claims tend to defy traditional rules of evidence, with credibility and benefit of the doubt tests needing to be specifically tailored to the particularities of the refugee situation. There is regularly a paucity of solid information on which to base a decision, a problem compounded by the variable quality of translation and interpreters. Refugees who flee rarely have time or foresight to prepare their claim by bringing documentary material. Persecution by State authorities is usually difficult to establish. This has led adjudicators in several jurisdictions to determine "real chance", not beyond reasonable doubt or balance of probabilities, to be the appropriate standard of proof. Administrative decision making is often insensitive to, or unaware of, this procedural framework which can be particularly problematic where, as increasingly, decisions are taken largely on credibility grounds.
The Courts and Tribunals in both Australia and New Zealand have had to grapple with many of the issues I have described, and have done by and large successfully. The body of jurisprudence developed by the NZ Refugee Appeal Authority, for example, has provided a solid platform on which the law has been able positively to evolve in New Zealand. In fact, from UNHCR's perspective, this proved an excellent model, firstly, because the Refugee Authority has been prepared to draw on jurisprudence that exists in other states - including those outside the common law tradition - and secondly, because, in turn, its jurisprudence has contributed to the corpus of what might be called "international refugee jurisprudence". That the House of Lords would defer, as it has, to the substance of a NZ Tribunal decision is certainly a significant achievement.
Again, from UNHCR's international perspective, a very positive feature of refugee law jurisprudence in this part of the world is the way that international law - particularly human rights and refugee law - have been able to pass into domestic legal culture and judicial thinking. [As the Chief Justice has so eloquently described], this process has occurred in various ways: primarily, through incorporation into national legislation but also through a less orthodox process of osmosis. In common law systems dealing with refugee issues, osmosis is often at work in situations where the Executive lacks the will or ability effectively to translate its international obligations into domestic law and where a vigilant Judiciary is not prepared to stand silently by in the face of lacuna and injustice.
This issue was most interestingly discussed at a South Asian meeting of Judges in New Delhi, also under the auspices of the IARLJ, late last year. There Justices of the Supreme Court of India described with satisfaction how the Indian Constitution's "right to life" provision had been infused with new vitality through that Court's creative decision making in refugee cases. Although India has not signed the Refugee Convention and has no statutory basis for dealing with refugee claims, the Court has been able to "read into" national law the core international principle of non-expulsion (non-refoulement) through an interpretation of the constitutional right to life protection which insists that refugees, like all other human beings, benefit from it which in turn prohibits their refoulement. In addition this provision has been used by the Court as the basis for deciding in favour of needed improvements in the quality of asylum refugees in India must be able to access.
Working with international legal principles is not always easy for national decision makers. There is often a reluctance - quite understandable in the common law tradition - about embracing standards which have no ready, national legal underpinnings. Members of the Judiciary, in particular, may be reticent about judicial encroachment on executive action and they may wish to avoid any appearance of judicial law-making. Part of the problem lies in the imprecision of the language of international law itself. The interpretation of international refugee law is not an exact science and, by and large, refugee and human rights law has been crafted by diplomats, not domestic lawyers. As a former Australian diplomat directly involved for a number of years in the drafting of the UN Convention Against Torture (CAT), I am very aware that international law is more often than not couched in the language of political compromise. It is certainly not a legal science. To domestic lawyers and Judges used to the precision of national law, these treaties may seem crude and clumsy - and perhaps even altruistic and unattainable.
It is here that Judges and advocates faced with interpreting international law in a national context have a dilemma. To ignore the principles runs the risk of creating injustice and hardship and may even make the Judiciary complicit in the State's failure to translate its legal commitments into effective domestic action. On the other hand, if Judges wish to use international law but feel constrained to subject the principles to some fine legal dissection, then their real spirit and intent may be eviscerated.
A middle course can usually be found where a treaty is interpreted in accordance with its objects and purposes. A "purposive" approach can ensure that an appropriate focus is kept on the palliative purpose of refugee and human rights law.
I am particularly persuaded by the necessity of such an approach following a recent discussion in Australia with a Federal Court Judge. We were discussing certain of the finer points of interpretation of the 1951 Convention concepts and the difficulties confronting the Federal Court in using the Convention to extend the necessary protection. My interlocutor queried whether the problem might lie partly in the fact that the Convention had a particular time and place, which its language reflected, and that it had, in effect, outlived its natural term. In response I reaffirmed that, from our perspective, the foundation principles in the Convention are as valid as ever, that a less rigid application of the Convention would go a long way to bridge the gaps, and that a failure to apply flexibly the existing provisions should not be confused with defects in the instruments themselves. If the objects and purposes of the 1951 Convention are paid heed to, the instrument can comfortably accommodate a number of emerging forms of persecution and displacement. This was certainly the approach taken by the House of Lords in the 1999 Shah and Islam decision, which dealt with gender based persecution and refugee status. The approach of the New Zealand Appeal Authority to such issues and the evolving scope of the term "social group" in the Refugee Convention, has been acknowledged as making a notable contribution to better protection of refugee women both nationally and internationally.
Judges of the ordinary courts will also come across refugee issues in other contexts. Refugees and asylum-seekers can be quite confused by a faceless bureaucracy where such basic rights as housing, education, medical support, family unity, work and social security become unattainable; they may appear in the criminal and traffic courts, the family courts and the labour courts. In all of these "encounters" with the host state system, understanding from the Bench for refugees' special vulnerability and their cultural or linguistic disadvantages can add real meaning to refugee protection.
The detention of asylum-seekers is another example where close judicial oversight is warranted, both as regards the legal basis of detention and the physical conditions under which it takes place. Unlike imprisonment pursuant to criminal law, which is regulated normally by scrupulous legal safeguards, there area few if any judicial checks on the detention of migrants and refugees. Regrettably, immigration detention measures have met with little effective resistance from some national courts. In some cases, it has been left to international human rights bodies, such as the Human Rights Committee under the International Covenant on Civil and Political Rights, to draw attention to impropriety, even the illegality, of states' detention practices. It can only be helpful for national courts to be aware of applicable refugee and human rights standards at the international level and to ensure they are effectively translated into domestic action.
In this way, Judges can ensure that the victims of forced displacement do not suffer a form of double jeopardy when they arrive in the host state. UNHCR is following with interest, developments in relation to the recent New Zealand High Court ruling that normal standards of administrative fairness, including legitimate expectation, ought to apply to a group of detained asylum-seekers. The review currently taking place of options for alternatives to prison detention - including the "open centre" option - is of particular interest to UNHCR which has been more aggressively promoting such alternatives over recent times.
As is clear from the foregoing, it is UNHCR's belief that active judicial supervision is fundamental to disentangling refugees from the wider and more politicised net of migration control. With their objectivity and their insistence on administrative fairness and executive accountability, Judges can ensure that the rule of law is applied even in those remotest recesses of executive action.
In conclusion, Mr Chairman,
Refugees and refugee issues transcend national borders so it is most appropriate that a network of Judges concerned with these issues should have a trans-national reach. The creation of the Australasian Chapter is a timely and fitting reflection of this fact and I hope that in the coming months, members of the Chapter will bring their practical experiences and wisdom to bear on the many pressing protection issues.
UNHCR and the IARLJ have a common commitment to protecting some of the more vulnerable and dispossessed people in any society and we share your vision that the protection of people must be the true purpose and function of the law.
I thank you.