Presentation by Ms. Erika Feller, Director, Department of International Protection, UNHCR, at the Conference Organized by the Portuguese Presidency of the Council, with the support of the European Commission (15-16 June 2000, Lisbon)
My thanks go to the organisers of this Conference, for the invitation extended to UNHCR and for the timely opportunity it presents for serious reflection on the way ahead for refugee protection in Europe. A question is posed to us for this session. Can a common European asylum system, based on a total and encompassing application of the Geneva Convention, be a decisive step forward by the European Union by providing a correct and efficient response to the challenges of today's world?
UNHCR would venture to say that it can. I want to explore this by looking at two likely scenarios for the future of the 1951 Convention - a worst case one and then the better alternative. Before doing so though, it will be important to situate the Convention and the refugee protection regime in its present context. What is the Convention and what is it not, as an instrument of refugee protection today?
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.
The Convention also 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. In May of this year at the meeting in Amman of the Inter-Parliamentary Union, Parliaments from 124 countries, by consensus, "reaffirm[ed] the fundamental importance of the 1951 Convention relating to the Status of Refugees and its Protocol of 1967", and "urg[ed] those countries which have not already done so to accede to [these instruments], and to other universal instruments of international humanitarian and human rights law and call[ed] on all States to fulfil their consequent obligations." Reaffirmations by 648 members of Parliaments from around the world in Amman, by the 15 EU Heads of States in Tampere, or by the 57 Government members of the UNHCR's Executive Committee of the centrality of the Convention to asylum systems today, coupled with the fact that States continue to accede and State Parties continue to promote accession, are very difficult to reconcile with assertions to the effect that the Convention is no longer relevant.
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. It needs adamantly to be stated that the Convention was never conceived as an instrument for permanent settlement only, much less for migration control. The Convention, together with its 1967 Protocol, was drafted to become the global, multilateral, standard setting agreement providing for the protection of individuals in need of protection. 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. While UNHCR can sympathize with the concerns of States that asylum not be frivolously resorted to without cause, or deliberately abused, the fact remains that there are sufficient safeguards in the Convention itself and means otherwise available to States to limit this possibility without having to resort to condemnation and formal modification of the basic provisions of the only global refugee protection framework that exists. 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 Migration Environment
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.
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.
A number of very telling observations on these, among other related issues, are to be found in a recent article in The London Review of Books (3 February 2000) titled "The Uninvited", by Jeremy Harding. One conclusion he felt justified, after much research, in reaching is that asylum-seekers are less and less welcome in many countries, unless they are formally being invited via resettlement programmes, visas or temporary admission from countries in crisis. If they enter by other routes, he observed, they face inevitable consequences, which include that their motives will be seen as economic and the fact of illegal entry will prejudice their case.
Trafficking and Human Smuggling as a compounding factor
One problem is that many refugees, of necessity, not only come uninvited but more and more via smugglers. Trafficking and human smuggling, is a compounding feature of the migration landscape. Harding aptly notes that there are "few Schindlers among the traffickers". 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, even while it carries a price tag going beyond its financial cost. An asylum-seeker who resorts to a human smuggler seriously compromises his or her claim in the eyes of many States. As Harding has also 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. 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.
The re-shaping of asylum policies
This combination of factors - the evolving refugee situation, the threat of uncontrolled migration, together with the costs, perceived or otherwise, of asylum - has led to a 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 has been 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 bewildering 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 rights-based approach to refugee protection altogether, with a growing preference by their governments for discretionary forms of protection that provide lesser safeguards and fewer rights to people of refugee concern.
Much ingenuity has been shown to develop new forms of protection. 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 accessible, and what are the legal and social consequences of different kinds of statuses. There is clearly a risk of "unseemly competition in inhumanity to asylum-seekers", as Harding put it. Certainly, merely to tolerate the stay, absent any rights, for those entitled to international protection is pushing the acceptable limits of these devices.
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 in effect another alternative source of protection. With all the advantages of this possibility being available, there is also the problem (at least at the present time) that non-refoulement under human rights instruments is not yet accompanied, for the beneficiaries, by clearly articulated standards for treatment and stay.
Two Different case-scenarios on the future of the 1951 Convention
Against this background, it is clear that a crossroads in refugee protection, and with the Convention, has been reached. So where might we be going from here? I want to turn first to the worst case scenario from UNHCR's perspective. This would, in its end result, have the Convention rendered redundant, or disappear altogether, to the irrevocable detriment of refugee protection
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 growth of "notions" or "approaches" which have substituted, in effect, for the application of the Convention by giving it a rather subsidiary place in a State's response repertoire. 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, are coming to constitute instead the rationale for non-resort to the Convention procedures in the first place. From our perspective, refugee protection can only be seriously jeopardized as a result.
Notions such as "effective protection elsewhere" are increasingly entering the asylum systems, in effect substituting for the internationally agreed refugee definition. Whether or not an individual has found - or even could have found - protection in countries through which that person passed is rarely easily or reliably assessed, and the indicators of "protection" are too imprecise. If the notion is to have any currency, its applicability should be determined on an individual basis, not on a country basis, and certainly not in the case of persons who have passed through countries of "mere transit". Any decision to return an asylum-seeker to a "safe third country" should be accompanied by assurances that the person will be readmitted to that country, will enjoy there effective protection against refoulement, will have the possibility to seek and enjoy asylum, and will be treated in accordance with accepted international standards. In addition, the adequacy of "protection elsewhere" has to be nurtured through carefully targeted assistance policies - albeit always understanding that this should not absolve States of their responsibility to offer protection to refugees on their territories. These are the basic standards UNHCR's Executive Committee has attached to this notion and should, at a minimum, be formally adhered to. Unfortunately this is not always, or even often, the case.
Similar concerns exist with the notion of "safe country of origin", which also is coming to serve as an automatic bar to access to asylum procedures. It is impossible to exclude, as a matter of law, the possibility that an individual could have a well-founded fear of persecution in any particular country, however great its attachment to human rights and the rule of law. While a sophisticated democratic order and an elaborate system of legal safeguards and remedies would allow for a general presumption of safety, history is replete with examples of no system being either infallible or immutable. Where the notion of safe country of origin is used as a procedural tool to assign certain applications to accelerated procedures, or where its use has an evidentiary function, for example giving rise to a presumption of non-validity of claims, UNHCR has far less concern, as long as the presumption of safety is rebuttable in a fair procedure.
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 should countries legitimate through law the exclusion of certain classes or nationalities of persons from any right to access existing asylum procedures, one could predict at best redundancy for the Convention, with refugee protection becoming ever more precarious, a game of chance.
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 traditionally has a strong legislative base. In countries where protection is not legislated for, certainly accession to the Convention would be an increasingly remote possibility. Telling in this regard is the repeatedly offered observation of the Indian Government, 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 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.
There are clear advantages to all concerned - the refugee obviously, but also host States and the international community generally - to a globally recognized and consistently applied regime of refugee responsibilities. Burden sharing would be enhanced, "forum shopping" so called would be diminished and better predictability of responses would improve asylum management. The worse case scenario would have none of these elements present.
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 underlies resurgence of debate in certain countries about the re-introduction of migrant worker policies.
In UNHCR's view, constructive and visionary immigration policies could result in an easing or at least a balancing of the pressure on asylum systems and switch the approach to where it should be - managing migration through migration tools and managing the asylum system through asylum tools. Where there are linkages - and trafficking and human smuggling is a case in point - special additional approaches are called for. It is worth noting here, for example, efforts under way in Vienna to elaborate a comprehensive international convention against organized crime, including the drafting of international instruments addressing the trafficking in persons, especially women and children, and the smuggling in and transport of migrants. In UNHCR's view, the elaboration of such instruments provide a unique opportunity to design an international framework which could provide a solid legal basis for reconciling measures to combat the smuggling of persons with existing obligations under international law towards asylum seekers and refugees. It is certainly a far preferable and more principled response to the human smuggling and trafficking problem than dismantling basic refugee protections which were never devised with trafficking and migration as their object.
In this best case scenario, what we should be working towards is in fact a revitalization of the Convention regime, which would preserve its centrality but would buttress it by more enlightened migration policies and harmonized additional protections. To return to the question at issue, this to our mind should be a central focus of efforts to develop a common asylum system in Europe. Certainly, one principle objective for us at this point is promotion of better respect of the 1951 Convention's terms, objects and purposes while, at the same time, we want to encourage examination of additional protections where they are necessary and how to harmonize them. This being said, UNHCR appreciates that the Convention does not cover all situations of displacement today. There is a responsibility on the Office to work with States to supplement - though not to replace - Convention principles with new approaches to offering protection. Our starting point in this regard is that a less rigid and more principled application of existing instruments would go a long way to bridge perceived protection gaps. We fully shared the conclusion 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, and the need for 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.
As regards buttressing the Convention where it is less strong, temporary protection is a case in point. For UNHCR, temporary protection is a flexible and pragmatic tool in mass influx situations 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. As Commissioner Vitorino has recently stated, "temporary protection should be an exceptional mechanism, safeguarding the integrity of the Geneva Convention and ensuring, in cases of mass influx, an immediate protection of temporary character until the normal asylum system is in a position to operate smoothly again." What is needed are better guidelines on how and when a temporary protection 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.
The better case scenario is built around the recognition 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? 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. In the process of revitalizing the protection regime, UNHCR also sees a 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.
The problem of people on the move, be it to search for better protection or a better life, is global in character and beyond the control of any one State. As one Government representative of a major refugee receiving country had cause recently to observe, "we seem destined to be continually in search of newer more effective control measures. No sooner do we solve problems of abuse than new ones appear. We are caught up in a cycle of adding more and more restrictive measures. The advent of well-organized criminal trafficking organizations may make our controls effective for even shorter periods.... We devise our measures [...] without knowing what the effect is on the growing number of people in the world who need protection. We measure their effectiveness by the reduction of the number of refugee claimants in [the country concerned]. We do not know how many people genuinely in need are prevented from coming.... We do not know what the effect of [our] control measures, in combination with similar controls in other countries, is on people genuinely in need of protection." These are sobering words - and not UNHCR's, although they could have been. In a related, if questioning, vein, for Europe, Poland's Foreign Minister recently asked, "the question is whether the future of the EU is to be built in an atmosphere of courage and imagination, or whether fear is to be the main emotion keeping the Union together."
In conclusion, 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, which include States, host communities and the international community generally. The refugee protection regime has to balance appropriately all these rights, interests and expectations. UNHCR regards it as its moral, legal and mandate responsibility to foster this process of developing new approaches, not to lower the international protection paradigm, but to strengthen the available protection modalities. With this in mind, and the 50th Anniversary of the 1951 Convention close on the horizon, UNHCR intends to engage in consultations involving senior government representatives and experts in the refugee protection area to clarify the content and scope of protection, within the framework of comprehensive approaches, necessitated by different refugee producing situations not fully covered by the 1951 Convention. We would hope that any proposals for change could be channelled into such a multilateral process in which, as the EU Heads of Governments have called for, the Convention and its protocol would remain the starting point and the foundation.