Opening Remarks by Mr. Dennis McNamara, Director, Division of International Protection, UNHCR, to the Symposium Commemorating the 50th Anniversary of Universal Declaration of Human Rights (Bangkok, 25 May 1998)
"Linkages between basic human rights values and refugees"
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Your Excellency Mr. Deputy Prime Minister, Mr. President of the Chulalongkorn University, Excellencies, Distinguished Guests, Ladies and Gentlemen,
First, I would like to thank Chulalongkorn University for inviting me here today for the opening of this Symposium and the following Regional Workshop on Refugee and International Humanitarian Law, which will be the first of its kind with over 40 participants from ASEAN countries attending for the rest of the week - bringing together an impressive array of people from a wide variety of backgrounds. I've known some of you here for 20 years, sometimes from the other side of the table in talks over the Indochinese refugee crisis, including the Comprehensive Plan of Action (CPA) and the implementation of the Cambodia Peace Accords. I am delighted to be back in Bangkok to address you in this special year marking the 50th Anniversary of the Universal Declaration of Human Rights. The Declaration was first major international human rights agreement, and then, as now, remains one of the great aspirational documents of recent history.
As a group, refugees are perhaps the most vulnerable of any to human rights abuses. While not all human rights issues concern refugees, all refugee issues have some connection to human rights. Most refugees suffer human rights violations at some point: at the time they are uprooted, during refuge, or sometimes, even after they have returned home. The very existence of the 50 million or so refugees and internally displaced people around the globe today is a barometer of the global lack of respect for human rights. Sadly, what we have committed to paper and laws we have not yet committed to practice.
Issues of forced displacement have in recent years risen sharply on the international agenda. Humanitarian action aimed at managing such displacement has moved beyond its origins of charitable multilateralism, and is now recognised as a vital and integral part of the international response to crises. Population displacement, whether internal or international, has become a major political, security and socio-economic issue, affecting national, regional and global stability. Unfortunately, focus today does not necessarily mean in-depth analysis, or even positive response, and I welcome the opportunity to address in a little more depth some of the related political and legal aspects of this complex issue.
Of the approximately 23 million people of concern to UNHCR today, around 13 million are considered to be refugees - those who have crossed international borders in search of protection and who fall within the provisions of the international protection system. UNHCR is also responsible for some 5 million internally displaced people, who have fled for reasons similar to those of refugees but who have not crossed an international border, and 4 million returnees, refugees who have returned to their own countries. In Asian terms, the numbers may not seem great, but the impact of these population displacements is much greater than the numbers suggest. For many developing countries, the burden of hosting a few thousand refugees is measured not only in economic terms, but also often more sensitively in the context of national security and inter-State relations.
The current international refugee protection system was born out of the horrors of two world wars and their humanitarian aftermath. Regrettably, the rapid evolution of the refugee problem, in its various dimensions, has not been paralleled by the progressive development of refugee law. In some cases, states have intentionally resisted this development, in others, perceived political or national interests have taken precedence, unhindered by adherence to legal frameworks.
Refugees are defined in international and regional laws as those fleeing persecution, conflict, or serious human rights violations. International law recognises that - unlike migrants - who move out of choice, refugees leave their homes because violations of their most fundamental human rights force them to do so. They can cease to be refugees only once these rights are fully secured and protected.
This task is not easy, particularly because the expression "human rights" carries different meanings and resonates differently in various parts of the world, and within countries, depending on political preferences and, importantly, economic status. This is where the well-established norms of international law come in. As Rosalyn Higgins, one of the judges of the International Court of Justice in the Hague, has said, international law "is a normative system, harnessed to the achievement of common values - values that speak to us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialised or developing".
Most rights crucial to refugee protection are also the fundamental rights stated in the Universal Declaration: the right to life, liberty and security of the person; the right not to be subjected to cruel, inhuman and degrading treatment or punishment; the right to freedom of movement and the right to leave and return to one's own country; the right to seek and enjoy in other countries asylum from persecution; the right not to be subjected to arbitrary arrest, detention or exile; and the right to a nationality.
The 1951 Convention Relating to the Status of Refugees was the first in a series of treaties which transcribed the ideals of the Universal Declaration into legally binding obligations. It is the most specific and comprehensive treaty for any particularly vulnerable group. The Convention follows from Article 14 of the Declaration, which states that "Everyone has the right to seek and to enjoy in other countries asylum from persecution", and together with its 1967 Protocol, has been ratified by 136 governments. It sets out a comprehensive bill of refugee rights, which UNHCR has been charged by governments to supervise, and has provided a basis of principles for a positive response to the needs of many tens of millions of refugees and asylum seekers. Asylum provides a predictable and structured framework for the protection of those fleeing war and persecution. It is the breathing space before resolution of the problem.
Regional instruments such as the OAU Convention in Africa, and the Cartagena Declaration in Latin America, reinforce the UN Convention. Here in Asia, the Bangkok Principles adopted by Asian-African Legal Consultative Committee some thirty years ago were intended to do likewise, but regrettably have been largely overlooked. Despite its positive traditions and hospitality to refugees, Asia remains the region with the fewest number of states parties to international refugee instruments, and with relatively undeveloped national legislation and procedures for handling refugee issues.
Over the decades, the basic provisions of international refugee law have been respected to a remarkable degree. Millions of refugees have been granted asylum and ultimately afforded the right to return home in safety and dignity or to find new homes. The refuge offered by Thailand to hundreds of thousands of refugees from Indochina since the 1970s, and the subsequent return of many of them to Cambodia and Laos earlier this decade; the resettlement of nearly 1 million Vietnamese refugees in third countries; the return of some 2 million uprooted civilians following the end of the brutal conflicts in Latin America; and the repatriation of more than a million refugees to Namibia, South Africa, and Mozambique, are some of the success stories of recent years.
Despite often heavy, political, economic and social burdens, States have continued to offer sanctuary to millions of victims of persecution and conflict. But there are worrying signs that warm welcomes are being replaced by cold shoulders. In many areas, the system of refugee protection - a system which has proven invaluable in securing human rights - is under severe threat. In fact, over the past four years, more refugee lives have been lost - mainly in the Great Lakes region of Central Africa - than in any other period since the Second World War.
The root causes of population displacement are inextricably linked to conflict, persecution and denial of human rights. Great Power rivalry and proxy wars have been replaced by internal ethnic conflicts, collapsing states, gross human rights violations and even genocidal wars. In the Horn and Great Lakes regions of Africa, the former Soviet Union, the Balkans and elsewhere, new divisions have opened up along ethnic and national lines, leading to civilian displacement on a massive scale, often intentional and in some cases accompanied by the destruction of normal state structures.
Persecution commonly takes the form of violations of the rights to life, liberty and security of the person, motivated by race, religion, nationality, membership of a particular social group or political opinion. War may also often be an instrument of persecution when it is used to eliminate or displace entire groups of people because of their ethnicity. In Cambodia, Yugoslavia and Rwanda, armed factions specifically targeted millions of civilians as an object of their gross objectives.
The refugee treaties set out the basic minimum standards of treatment to which refugees are entitled during asylum. These include the right to physical security, the right not to be subjected to discrimination, the right to freedom of movement, the right to vote and the right to family unity. As recent events around the world have shown, in many places these rights are regarded as little more than pro forma pronouncements.
Over the past year here in Asia, as well as in other regions in Africa and in Europe, we have also seen brutal expulsions of refugees, physical attacks on refugees and refugee camps, and detention of asylum seekers for unacceptably long periods. In one incident, (not in Asia), over 200 refugees were killed and about the same number wounded. In a series of several attacks on refugee camps in 2 countries in Asia, refugee houses were burnt down, a number of refugees were killed and many more were wounded. Following several security incidents in Africa, UNHCR had to evacuate by air a number of refugees whose physical safety was seriously threatened. And today, it seems most likely that the 80,000 Cambodian refugees in Thailand will not be able to exercise their right to vote in the planned elections in Cambodia, (a major objective of the 1991 Cambodia Peace Accords), thereby denying thousands of people any say in the future direction that country will take.
We have even seen in recent years increasing and direct violations of the most important right for refugees - the right not to be refouled or returned to countries where their lives or freedom are threatened. There have been notable instances of states sealing their borders and refusing entry to those fleeing conflict and persecution - most dramatically, though not only, in Africa's Great Lakes region. Large numbers of asylum-seekers and refugees have been victimised, among them many women and children, some with appalling consequences. In one case earlier this year, which unfolded over a three-month period, some 4,500 thousand persons of concern to UNHCR were forcibly returned to their country of origin, and in another some 2,000 refugees were expelled.
The right to asylum also means that asylum-seekers are entitled to legal procedures to determine their claims to refugee status. Regrettably, many states with developed systems are tightening their asylum laws. By fine-tuning rules and regulations, they are barring would-be asylum-seekers from gaining access to their territory and to asylum procedures. Some states send asylum-seekers back to unsafe countries through which they had transited; some impose penalties against airlines carrying suspect passengers; some detain asylum-seekers for long periods. Others simply expel them.
Those who may have been wrongly rejected from refugee status or who have protection needs not covered by the 1951 Refugee Convention can turn to other human rights treaties for protection. The UN Convention against Torture, for instance, prohibits the expulsion of any person to a country where he or she may face torture.
Not surprisingly, as they were drafted by States, the refugee treaties also provide safeguards for States as well. For example, the Convention specifically allows governments to expel refugees whom "there are reasonable grounds to regard as a danger to the security of the country". Exclusion clauses ensure that international protection is not granted to those who do not deserve it, including primarily those guilty of war crimes or crimes against humanity. In this sense the 1951 Convention is an instrument against impunity for those crimes, an important link with recent developments such as the establishment of international War Crimes Tribunals for the former Yugoslavia and Rwanda.
The return of refugees to their country of origin is generally accepted to be the most desirable solution to any refugee problem. The right to return to one's country is also set out in the Universal Declaration. But for this to work, States must accept back their citizens; and human rights standards help define the conditions for the safe and dignified return and reintegration of refugees to their country of origin. If returnees are to reintegrate successfully into their home countries, they must have a place in which to live, they must be able to work, to educate their children, to participate in the political and cultural life of the community, and to be free from discrimination in exercising these rights.
Unfortunately, in many countries to which refugees return, conditions fall far short of this ideal, ranging from Cambodia, Myanmar, and Afghanistan, to the Democratic Republic of the Congo and Burundi. In Europe, the lives of ethnic minorities returning to Bosnia are being threatened by other Bosnian citizens, and their houses are being burned down. In Rwanda, some of those returning face arrest and detention without due process of law. In Georgia and other countries in the former Soviet Union, as well as in Bosnia and Rwanda, returnees face great hurdles in reclaiming their property and houses. Under these circumstances, return risks being not only short-lived, but also possibly dangerous. That's why the international community must support efforts to restore confidence and respect for the rule of law, and the basic judicial, legal and civil structures which uphold it, in all of these places, if we are to avoid secondary refugee/returnee movements.
The recent proliferation of civil wars has created another category of dispossessed populations - internally displaced persons. They are often fleeing the same human rights violations as refugees, but they remain within national borders. The laws that protect refugees do not protect them; nor is there any international agency uniquely mandated to assist them. However, the Secretary-General's Representative on Internally Displaced Persons, Francis Deng, is formulating a set of principles that will guide states on how best to protect these people. But again, more concerted international efforts by States are required to implement agreed standards for IDPs.
Women and children have always been easy targets for human rights abuses. Refugee women and children are often doubly jeopardised: the most vulnerable of an already-vulnerable population. Often, they are exposed to rape, sexual violence, and forced military recruitment. Despite the fact that the 1989 Convention on the Rights of the Child is the most comprehensive and widely-ratified treaty in existence, some estimates indicate that the number of displaced children is increasing by up to an alarming 5,000 per day.
Both internally displaced persons and refugees usually enjoy the rights of nationality. But, in the wake of the dissolution of the Soviet Union and the break-up of Czechoslovakia and Yugoslavia, an increasing number of people are now stateless. While the causes of statelessness differ from the causes of refugee flows, stateless persons face similar problems as refugees. Mandated by the General Assembly, UNHCR assists stateless persons to solve their problems, including by helping them return to their original home countries and obtain citizenship.
As the international agency created to protect refugees, UNHCR's core work is human rights-based and practical human rights work. The agency works closely with UN High Commissioner for Human Rights, the International War Crimes Tribunals, and organisations such as the ICRC. While the issues of concern overlap, UNHCR's mandate is distinct from these other organisations. The Office of the High Commissioner for Human Rights must, at times, be judgemental and perform investigatory and prosecutory activities as it monitors human rights standards, particularly in field operations. But the impartiality of humanitarian action, the broad environment within which UNHCR functions, is a sine qua non of its effectiveness. Our non-political approach allows us access to all victims on all sides of conflicts who are in need of our protection and assistance. To best protect populations uprooted by human rights violations or conflict, humanitarian action and human rights advocacy must remain distinctive but mutually supportive.
Before closing, I would like to return to the issue of a regional framework for Asia to deal with refugee problems. Pandit Nehru once said "The rule of law must strengthen the rule of life". The rule of law in the context of refugees, as in any other situation, is intended to bring predictability, accountability, and due process. The best protection against refugee calamities is international and regional consensus on key principles, within a broader human rights context. The Comprehensive Plan of Action for Indochinese refugees in Southeast Asia is an example of the tangible benefits for all parties from such an approach.
UNHCR has been working with the AALCC to reinvigorate the 1966 Bangkok Principles, and we hope that the process will eventually persuade states in the region to agree on a broad framework for future positive action. Asia's uniqueness in this process need not be lost. Just as Europe, the Americas and Africa have all devised regional human rights and refugee instruments to suit their particular needs, traditions and experience, so too should this region. I would hope that countries in the region would not miss this important opportunity to add this dimension to Southeast Asia's already remarkable list of achievements in other fields.
The 50th anniversary of the Universal Declaration of Human Rights provides a public opportunity to reflect on the great strides in human rights and refugee protection of the past decades. But perhaps even more important, we must acknowledge the enormous challenges confronting us. This discourse cannot ignore the yawning gap between the law - and the rhetoric - of human rights, good governance, and effective civil society, and the inability of many millions of people - including refugees - still to enjoy these basic rights.
The task is clearly not UNHCR's alone. Governments, the UN and other international and regional organisations, as well as non-governmental organisations and community groups are crucial partners. In this context, let me say how much UNHCR appreciates the close and ongoing co-operation we have enjoyed with the various actors involved in refugee protection in this region, including government bodies, NGOs, academics, the legal profession, and the judiciary. Refugee problems require multifaceted responses, including the active support of all who are concerned with the basic tenets of humanitarianism and the principles of law. This challenge can only be met by a sustained international coalition to give real meaning to these fine principles. Globalisation of the causes and consequences of refugee movements needs to be matched by an equally universal humanitarian response. Failure to do so will jeopardise the security and well-being of millions of the world's most vulnerable people.