Presentation to the Lauterpacht Research Centre for International Law by Erika Feller, Director, Department of International Protection, UNHCR (Cambridge, 17 October 2000)
The 1951 Convention at 50: New Challenges for the International Refugee Protection Regime
My thanks go to Daniel Bethlehem for the invitation extended to me to share our thinking about the challenges facing the international refugee protection regime on the eve of the 50th Anniversary of its foundation and pivot, the 1951 Convention relating to the status of Refugees. It is a pleasure and an honour for me both to be here with you and to have the opportunity to re-establish a much valued tie with Professor Lauterpacht, as well as to acquaint myself and UNHCR with the Lauterpacht Research Centre for International Law. I had the privilege of working with Professor Lauterpacht in the mid 70's, at the time when he was the Legal Advisor to the Australian Department of Foreign Affairs. He was a very stimulating colleague and a wonderful teacher. For him, as his Executive Assistant, I spent many hours researching what was to become the first Australian Practice section of the revived edition of the Australian Journal of International Law. Interestingly, my task then was to examine Australia's international relations activities to identify what might be categorized, beyond an exercise in international relations, as practice in international law. What I learnt is that the theory of international law is relatively clear, but the practice is, often more ephemeral. International refugee law is, though, one exception to this broad proposition. It can be very practical, and very legal, both at the same time, with clearly articulated rights and responsibilities which increasingly are legislated for and enforced through the judicial processes.
I will be looking at the topic today from the perspective of the UNHCR. UNHCR is the organization mandated to lead and coordinate international action to address the needs of refugees and to work with States to find solutions to refugee problems. The work is fundamentally humanitarian - saving and bringing basic support to people's lives, counselling and alleviating their traumas, helping them become self-sufficient, paying special attention to the most vulnerable. The essential frame for all these activities is UNHCR's protection mandate. This mandate, as set out in its Statute, is to provide international protection to refugees and to seek permanent solutions to their solution. UNHCR actions are firmly based in and guided by international legal principles and standards, which reinforce the legitimacy of these actions and which are essential to the attainment of refugee safety.
UNHCR's protection responsibility is not a discretionary but an obligatory one, carrying with it a right, even a duty, to intervene to ensure protection to persons of concern to the Office. This so called right of intervention is what distinguishes UNHCR in the UN family, whose other members by and large are dependent for the exercise of their functions on the invitation of States to undertake them. UNHCR's annual budget is some 800 million dollars US, and its principal clients - refugees, returnees and some internally displaced populations - amount to around 22 million persons in 124 countries. A large percentage of those of concern to us are women, children, and the elderly.
These statistics are one indicator of the scale of humanitarian need which underlies the work of international refugee protection. What they do not show is how hard it is becoming. If refugee protection is a responsibility, stemming from international legal obligations freely assumed by, for example, becoming party to international refugee protection treaties, it is also, for States, a less and less welcome responsibility. There is certainly an irony in the fact that protection is both the most promoted in rhetoric and the most disliked in practice of the functions entrusted to the High Commissioner. That it is the Office's central responsibility is often repeated and UNHCR is encouraged to give it absolute priority. At the same time, it is the exercise of this responsibility which attracts the greatest suspicion from a number of States and brings the Office most often into confrontational situations. Why this disjunction between words and deeds, you may ask? There are, of course, a number of possible explanations. The first clearly is inherent in the nature of protection itself, where it serves as a restraint on the freedom of any State to treat citizens or non citizens at discretion. As a limit on sovereign discretion, its exercise is rarely applauded by those States directly affected, regardless of the correctness of the act. Another explanation lies perhaps not in the way protection is practised, but with the framework within which this is carried out. We hear with increasing regularity that the protection regime and particularly its centre piece, the 1951 Convention of which we have been made the guardian, no longer exactly fits the problem.
I want in the time that remains to explore the truths and fallacies of this assertion.
What is the Convention?
The 1951 Convention is traditionally described, and with justice, as 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.
The Convention has a legal, political, and ethical significance that goes well beyond its specific terms - Legal in that it provides the basic standards on which principled action can be founded; political in that it provides a truly universal framework within which States can cooperate and share the burden resulting from forced displacement; and ethical in that it is a unique declaration by the 139 States Parties of their commitment to uphold and protect the rights of some of the world's most vulnerable and disadvantaged. The fact that States continue to accede and that State Parties continue actively to promote accession, are very difficult to reconcile with any assertions to the effect that the Convention is no longer relevant.
What the Convention is not:
These assertions are, though, made. 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. It needs adamantly to be stated from the outset that the Convention was never conceived as an instrument for permanent settlement only, much less for migration control. It cannot be held accountable for what it has not achieved, in relation to problems for which it was never intended as a response. 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 individuals in need of protection. While UNHCR can sympathize with the concerns of States that asylum not be frivolously resorted to without cause, or deliberately abused, there are sufficient safeguards in the Convention itself. 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.
The Protection Environment
Some may say, well this is self evident, so why is the Convention nevertheless the target of criticism, why is there pressure from all sides to develop new approaches, extra Convention? To understand this, one has to appreciate that 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.
In addition critiques of the Convention have to be understood against the broader context of forced migration and trends of today. Forced displacement has been a continuous feature of the international landscape over many years. There are though a number of new elements that do singularly challenge the existing instruments.
Transformations in the international political system following the end of the Cold War have altered the context of refugee protection. The so-called humanitarian space is much diminished, with UNHCR and other humanitarian organizations having to protect and assist refugees more and more in conflict situations awaiting political, as well as military, resolution. Woldwide, 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 British journalist put it, "with clans, bandits, militias, and weekend fighters".
Refugee problems are not only closely tied to the spread of inter-ethnic conflicts, but also to globalization and the management of its migration aspect.
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 is a clear encouragement to the would-be migrant, at a time when legal migration options are limited, with the asylum channel being among the few openings here. To governments aiming at minimizing the effects of globalization of migration, asylum is an exemption that allows too many people through the door. The result is that the distinction between asylum-seekers and migrants is being eroded.
One problem is that many refugees, of necessity, not only come uninvited, but more and more via traffickers. Few traffickers undertake their activities for humanitarian reasons. There are many evils associated with trafficking and smuggling which are criminal activities and which lead to many individual abuses. It is also true, though, that being smuggled to sanctuary has become an increasingly important option for asylum-seekers. However an asylum-seeker who resorts to a trafficker can seriously compromise his claim in the eyes of many States. There is an imputation of double criminality: not only do refugees flout national boundaries, but they consort with criminal trafficking gangs to do so. Therefore, it is reasoned, their claims must be bogus. "To be an asylum-seeker is to be a stranger on trial", recently suggested one writer on this topic. "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."
Another feature of the changed environment for refugee protection 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. States seeking to restrict asylum options frequently claim that these options have to be limited because of the economic burden of offering asylum, set against 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. In parallel with more and more asylum arrivals is a growing incidence of racism, xenophobia and intolerance directed against refugees, asylum-seekers and foreigners in general. There is also a cost to this at the political level and it is certainly, as a result, a disincentive to enlightened arrival policies.
Against this background what are the main challenges as we see them today facing refugee protection?
There are, for UNHCR, some four overarching protection challenges, which I recently explained to our intergovernmental Executive Committee as being the following: to redress the deteriorating quality of asylum; to give new impetus to efforts to revitalise a too often criticised, disregarded or abused protection framework; to strengthen partnerships so as to bolster our own capacity to ensure protection to persons of our concern; and to find solutions to refugee problems with protection an overarching consideration.
In our efforts to respond to these challenges we have to contend, almost on a daily basis, with problems which interestingly share quite a degree of commonality across countries and regions. The first set of problems is how to ensure protection to refugees in mass influx situations. Mass flight is a feature of the refugee problem on every continent. Effective protection is rendered exceedingly difficult where the exodus results from conflict which remains unresolved, where parties to the conflict lack authority or legitimacy, and where there is no sense of accountability as regards compliance with basic human rights or humanitarian norms of behaviour. In some situations, the conflicts have spilled across frontiers and affected areas where refugees, returnees and displaced persons are living, seriously threatening their safety and that of the local population. Concerns about national security and the safety of the local population have led to the closure of borders to new arrivals, to denial of asylum and to detention of refugees. Refugee women, children and the elderly are at most risk, often the first casualties.
In a number of traditionally hospitable asylum countries, the political, security and economic impact of protracted refugee situations is now provoking hostility, violence, physical attack and rape of refugees. It is a sad fact also that, in many cases, racist and xenophobic attacks against refugees are being politically instigated, and refugees are being made the scapegoat for other inadequacies, even electoral purposes.
Asylum fatigue in protracted refugee situations, coupled with failing international support, has made solutions more difficult, forcing repatriation before it is really safe, while rendering any degree of local settlement illusionary. They are all issues which beset our operations in Africa, in South and South East Asia, in Central Europe, the Caucasus and in the Middle East. In short, they are widely shared.
A second set of problems arises not in mass influx situations but where refugees arrive individually. Most countries on all continents are called upon in one manner or another to respond to the needs of the individual refugee. Increasingly they share a concern about over-burdening of their asylum structures, about rising costs of various types associated with running their systems, about legal difficulties in applying refugee concepts to mixed groups of arrivals, and about misuse of their systems by would be migrants. Their inability to return rejected asylum-seekers is, from their perspective, also a serious problem.
One result, seen from a protection perspective, has been the growth in processes, laws and concepts whose compatibility with international protection principles is ever more tenuous. Restricted access to territory or to asylum procedures, as well as increased detention, reduced welfare benefits and severe curtailment of self-sufficiency possibilities, coupled with restricted family reunion rights, are all manifestations of this trend. A major preoccupation for UNHCR and even for many States at this time, particularly those States still setting up their asylum systems, is to put in place processes which responsibly identify who is a refugee, who is otherwise protection vulnerable and who is not deserving of protection, and should be rejected and returned home, in a safe and dignified manner.
There is no doubt that, as with mass influx situations, so too with individual refugee arrivals, the call is growing for clearer criteria and a better system to decide which State is responsible and best suited to meet the protection needs of which refugee. Responsibility sharing is a growing concern for many States, whether in Europe, the Americas, or parts of Africa.
There is a third set of concerns shared by many refugee receiving countries. These might loosely be subsumed under the question of how to realise solutions for individuals, as well as for refugee groups, which are both lasting and protection based. Voluntary repatriation continues to be hampered in many parts of the world because of endemic violence, lingering insecurity or resurgence of conflict. While voluntary repatriation remains the most desirable solution, it is a sad truth that induced return is more the norm than the exception these days. Where it is to a lingering bad situation, this leads to fresh outflows, or it delays reintegration and adds to the problem of internal displacement.
In protracted refugee situations, the will to find interim solutions is lacking. Resettlement to third countries is a protection mechanism and a solution, but necessarily of limited applicability. In some cases, local integration, or even just possibilities for self-reliance, are not being fully exploited for political reasons, or lack of financial resources. In short, there are large numbers of refugees without access to timely or safe and lasting solutions.
The 1951 Convention at Crossroads:
It is clear that a crossroads in refugee protection has been reached. So where to go from here? Mindful of all these various developments, we decided to take the opportunity of the forthcoming 50th Anniversary of the 1951 Convention to initiate a process of open dialogue with governments, NGOs and refugee experts with a view to revitalizing the Convention regime. Our purpose is both to preserve its centrality, and to buttress it by harmonized additional protection. More enlightened migration policies would also assist, in UNHCR's view. Further development of the protection regime will have to 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 underlies resurgence of debate in certain countries about the re-introduction of migration worker policies.
We have a working frame for these consultations, in the form of three concentric circles. The inner heart would represent the basic, globally agreed framework principles of the 1951 Convention. We hope that the 50th Anniversary of the Convention next will be the occasion for States parties unequivocally to reaffirm their commitment to full and effective implementation of the Convention, and to examine ways in which this might be strengthened through better supervisory mechanisms. Ideally, the first meeting ever of States parties to the 1951 Convention would be the way to really give a focus to the 50th Anniversary.
In the next circle of issues we have placed open interpretative questions regarding the Convention. Our interest here is in examining how and in what directions the law has developed over recent years, that is in a stock taking exercise which would allow decision-makers to be better informed about how the Convention is being understood and applied today. We will be organizing round tables of experts, informed by background papers on topics such as the interpretation of the cessation and exclusion provisions, membership of a particular social group ground, and gender related persecution. We hope to publish the papers and results of the discussions, again as a contribution to the 50th Anniversary.
Finally, in the outer circle, there are the gaps - the situations the Convention does not adequately, or at all, cover. The Consultations, which will take place within the framework of UNHCR's Executive Committee, will focus, broadly speaking, on the thematic areas where the challenges lie, which I outlined earlier: protection of refugees in mass influx situations, protection of refugees through individual asylum systems, including the problems inherent in the migration/asylum interface, and realization of protection-based durable solutions. The overarching theme that has to run through these consultations is responsibility sharing, based on international cooperation and solidarity. We hope the consultative process will define the problems, as well as identify new approaches, tools or guidelines.
This is not an exercise without dangers. Some refugee advocates fear that if we put the Convention in anyway into discussion we may lose even more support, while we may end up provoking a consensus around a protection regime of much more limited rights. We acknowledge the dangers but don't see it quite this way. The fact is that we do have more and more problems in offering protection and our tools, of which the Convention is a basic one, are ever more challenged.
As one highly respected refugee lawyer and academic recently and aptly observed " A great, indeed damaging disservice is done to the protection of refugees by pretending rules exist where there are none, or by imagining that the persistent objector can be overcome by persistent rhetoric alone. The future agenda for protection, therefore, ought to include a forum in which problematic issues are exposed to inquiry and debate." We will now offer that forum.
As the Secretary General said at the Millennium Summit, international law is the common language of the our global community. We need to reaffirm this common language in the refugee protection area, even while we develop a protection based new narrative to meet the many challenges of the future.