Presentation by Ms. Erika Feller, Director, Department of International Protection, UNHCR, at the IARLJ World Conference: "Judicial or Administrative Protection - Legal Systems within the Asylum Processes", Stockholm
Protection of people must be amongst the most important of the purposes and functions of the law. UNHCR is a strong believer in active judicial supervision, as a critical factor for the delivery of effective protection to refugees, who are some of the most vulnerable people in any society. This being said, there are fundamental issues to do with where and how legal systems fit within asylum processes. In the limited time available to me, I want to explore some of these issues and then offer a few observations on how this Association might make progress with them.
There are few, if any, parts of the world that do not either produce or receive refugees, often under very horrifying circumstances. Darfur is but one ongoing example. In a recent report we learnt of girls first being raped, either for fun or deliberately to fragment communities, and then subsequently detained by the justice system for the offence of fornication when they become pregnant. Payment to the police of a fine, which can be up to $80 - an enormous amount in Sudan - will buy freedom and also delay the punishment, which is to be whipped, until after the birth of the baby. UNHCR is particularly cognisant of the special vulnerability of women and children in displacement situations and in Darfur, amongst other initiatives, we have established a significant number of women's shelters in areas where high rates of sexual assault against women are reported. This is the "front line" of protection, and the fact that it has to be carried out, more often than not, in remote and dangerous locations where a climate of total impunity reigns, makes it a singularly difficult task.
Your Association is, of course, several steps removed from these field realities. Impunity, however, is not an unknown issue closer to home. Let me give it its context. Protection has to be realised today in a global climate of emerging "asylum fatigue". This is born of various concerns, some understandable and others much exaggerated. Countries profess to be much disturbed about the burdens of hosting refugees falling unequally; about the growth of international crime, people smuggling and terrorism, and its alleged link to unauthorised asylum arrivals; as well as about the difficulties in trying to distinguish between refugees and migrants. For the people who need protection, accessing it effectively is impeded by all these things, as well as by faltering support for asylum seekers among civil societies and political imperatives, including the survival of elected government ministers, that fuel a climate of impunity when it comes to respect for international refugee law and protection principles.
Systematic violations of human rights and blatant disregard of humanitarian law in conflict will continue to cause displacement and seriously jeopardise asylum seekers in asylum countries in some parts of the world. However, the growth in a number of countries of restrictive asylum systems, marked not least by contestable interpretations of the refugee definition, barriers to accessing asylum processes and substitution of discretionary forms of protection for protection based on universal principles, is a parallel development of growing concern. Interdiction or interception of persons, including refugees, trying to enter a country is established practice. Even while asylum in another country for shorter or longer periods is still the only viable protection possibility for many of the world's forcibly displaced, the asylum space is becoming ever narrower in response to security fears, backdoor migration and local xenophobia. Many of the measures being taken to respond to these concerns and effectively close the asylum door are formulated in quite restrictive legislation and a maze of subsidiary regulations. Collectively, and depending also on the vagaries of ministerial discretion, they can serve as a formidable barrier to a humanitarian protection response. 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 migrants misuse 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 true to its object and purpose and that responds in a principled manner to new factual realities. This is the very important role of the judiciary, which we actively promote.
All of the foregoing is by way of context for what I now want to say. I have been asked to reflect in more detail on how best an asylum system might be constructed in today's not so positive environment, so as to ensure fairness and accountability in the decision making process, as one guarantee at least that protection will be accessible to those in need of it.
As many of you know, UNHCR has a responsibility, set out in Article 35 of the 1951 Convention relating to the Status of Refugees, to supervise its implementation. Amongst other activities, this work involves promoting the setting up, and monitoring the operation of, refugee status determination procedures. Fair and efficient procedures for the determination of refugee status are in our understanding essential for a full and inclusive application of the Convention. UNHCR encourages countries to sign the Convention and to set up such procedures, in order to identify quickly and accurately, those who need international protection and those who do not. Some of you come from countries which have not yet acceded to the 1951 Convention or have not yet set up procedures - we hope you will support our efforts to encourage your governments to do so.
Most functioning refugee status determination procedures consist of an administrative body that makes the decision in the first instance. This decision is subject to review on the basis of fact and law by another administrative or judicial body. Judicial review on questions of law is sometimes available thereafter.
UNHCR's experience in many different asylum systems leads us to recommend that the review of an initial RSD decision be made by a specialized administrative tribunal in a judicial or quasi-judicial process. Decisions of such tribunals not only help to ensure fairness in the individual case but also provide formal guidance to the primary eligibility decision-making body. Provided such tribunals are adequately resourced and are permitted to function fairly and independently, then the role of the regular civil courts in RSD should be largely confined to judicial review and to standard-setting on issues of major legal significance.
To recap, the core elements, or hallmarks, of an effective system for the determination of refugee status, are in our experience:
a) a single, specialized first instance body with qualified decision-makers, trained and supported with country of origin information;
b) adequate resources to ensure efficiency, to identify those in need of protection quickly and to curb abuse;
c) an appeal to an authority different from and independent of that making the initial decision;
d) a single process to deal with both refugee status and complementary forms of protection.
Based on our review of asylum procedures world-wide over many decades, there is no doubt that the involvement of the judiciary in a national system is a very positive factor. To put it diplomatically, the sheer number of people trying to enter national asylum procedures is sometimes a temptation for governments to look for economies of due process. These can take a variety of forms. They have included, over recent times, resort to legal devices to allow summary dismissal of claims deemed manifestly unfounded, using criteria which have only a marginal relationship to the notion of manifest unfoundedness. The creation of new legal concepts [such as internal flight alternative, irregular movement or safe third country] as barriers to accessing asylum, which are ill defined, and which in effect change the refugee definition, or graft onto it criteria not properly attuned to its protection base. Expeditious procedures have their place. So too does new thinking. However these should not be at the expense of key Convention notions, or basic principles of fairness and thorough enquiry. Here judges have an important, if not always popular, role to play. Active judicial supervision and an insistence on the rule of law certainly materially help to disentangle refugees from this net of migration controls.
Refugee issues are often emotive ones, raising concerns over such things as state security, sovereignty and social cohesiveness. The value of the judiciary in the asylum system is rooted in its independence - not only as an entity independent of the initial decision-maker, but as an institution which is independent per se. This is what sets judicial decision-making apart, and makes it so indispensable in a democracy. Judges decide cases according to the law as applied in the individual case and not subject to pressures of outside influences.
The value of the judiciary in asylum procedures is not only linked to its independence - but also to its role of setting precedent, interpreting the definition, deciding individual cases and establishing procedural standards. As these have been the focus of my remarks at previous Association conferences, I will deal with them only briefly today.
The judiciary has given important guidance on the meaning of the Convention refugee definition - what can constitute persecution, who can be agents of persecution, what is a well-founded fear, what is political opinion. These issues have been analyzed with great care by judicial bodies around the world, often after considering decisions from other jurisdictions. Courts have also pronounced themselves on the criteria for complementary protection.
In addition, leading judgements have addressed minimum procedural standards, such as the need, in most cases, for a face-to-face interview or hearing before the decision-maker. Courts have held that the decision on refugee status is a serious one requiring a high level of procedural fairness. There have also been important decisions on the burden of proof and evidentiary standards.
However, the developments have not always been positive. At both the administrative and judicial decision-making levels, there have been decisions, which in the view of UNHCR, go against the spirit and indeed the letter of the 1951 Convention. Examples include unduly restrictive interpretations of the refugee definition including very limiting notions of what amounts to persecution, who are relevant agents of persecution and what constitutes effective state protection. This has led some to argue that refugee law, rooted as it is in international law, should not be too closely in the hands of national courts. The argument goes on that refugee law was not drafted by lawyers or for their interpretation, but rather by diplomats for governments to apply. In the hands of the legal profession it can, even inadvertently, become as much an instrument to restrict rights as one to guarantee they will be respected. Let me hasten to add that, while it is true that on occasion over-legalistic approaches do become a complicating factor in the current restrictive climate for refugee protection, overall careful legal scrutiny is certainly a plus and in most countries constitutionally guaranteed.
There are dilemmas for judges in using international law as an authoritative basis for decisions. They may be reluctant to embrace standards that have no clear legal authority in their national laws. They may be cautious not to encroach too far into the realm of executive action through, in effect, judicial law making. The imprecision of the language of international law is indeed a drawback for those for whom law is a more exact science. The challenge is to interpret the principles in a manner that strengthens the protection framework, to take a purposive approach to using international law which places the focus less on the strict letter and more on the object of the text, the victim and the palliative purpose of protection.
Part of UNHCR's supervisory role is to intervene in problem cases, which we often do in both quasi-judicial settings or before courts, in the form of amicus curiae briefs, statements or letters. We do this to promote a more inclusive and appropriate interpretation of the Convention definition. UNHCR's role in this regard has normally been appreciated by Governments and Courts, although our positions have not always been adopted.
More generally, I would like to mention, particularly as there are present here a number of judges who are new to refugee law, that since its inception, UNHCR has provided governments with advice on refugee status determination. The seminal work in this regard is the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. It was prepared by UNHCR in 1979 at the request of Governments in order to provide guidance to their officials involved in refugee status determination. It was based on the practice of States and of 25 years of experience by UNHCR. I can say that there is no better overall description of the refugee definition in the literature.
We have recently supplemented the Handbook with a series of six Guidelines on particular issues: Religion, Membership in a Particular Social Group, Internal Flight or Relocation Alternative, Gender-related Persecution, Cessation and Exclusion. These were all canvassed in the Global Consultations a couple of years ago. Each topic was examined in detail by government officials, members of the judiciary and of the legal profession, academics, UNHCR and non-governmental organizations. On some of the topics, like Membership in a Particular Social Group and IFA, there were wide divergences in national jurisprudence. Part of UNHCR's aim was to examine these and suggest a way forward.
The UNHCR Handbook has over time been recognized by Courts and Tribunals across the world as an authoritative text on the interpretation of the Convention Refugee definition. We are pleased to see that the Guidelines are beginning to be cited in judgements, for example in Australia, New Zealand, the U.K, and the U.S.A. It is our hope that with time, they will be as useful to decision-makers like you, as the Handbook has been. The Handbook and the Guidelines are in UNHCR's Refworld, which you can see in the hallway outside. The Handbook is also in a booklet format.
If I have concentrated on issues of interpretation, it is because these are where you are most likely to meet refugee questions. But not only!! As I have had occasion in the past to mention, refugees may well appear before you in other contexts, when such basic rights as housing, education, medical support, family unity, work and social security are for them not easily obtainable, or obstructed. They may accordingly appear in the criminal courts, traffic courts, family courts or labour courts, as well as in immigration detention hearings. In all these contacts with the host state legal system, understanding from the Bench for the special vulnerability of refugees and their cultural or linguistic disadvantages can add real meaning to refugee protection.
I would like to turn now to the work of this Association and expand on my words of welcome. UNHCR is happy to have supported the establishment of the IARLJ. Our partnership was formalised on the basis of the Memorandum of Understanding agreed with you some 6 years ago. As the MOU envisages, we are working together, amongst other things, to promote within the judiciary and with quasi-judicial decision-makers world-wide, a common understanding of refugee law and asylum principles, to encourage the use of fair practices and procedures to determine refugee status, and to promote capacity-building and networking.
It has been a very fruitful relationship. Since 1997, well over 500 national judges in different countries have been trained by the IARLJ, with innumerable national training sessions having been conducted for member and associate judges and non-judicial first instance decision-makers. Most of the activities of the IARLJ have centred on Conferences and Workshops - and through them on setting up a network of judges interested in international refugee law. Judges from all over the world have held consultations and exchanged experiences through meetings of the Association in places as various as Canada, Costa Rica, India, New Zealand, South Africa, Switzerland, and now in Sweden. Regional Chapters have been established on several continents. A singular advantage of the IARLJ is that it offers a forum where judges can speak directly to judges, colleague to colleague, on the basis of shared interests, different experiences and common bonds. In this respect the IARLJ fills a particular niche. It has as a result attracted a great number of committed members who devote a significant amount of their scarce "spare time," energy and intellect to working with the Association.
To this point, then, the evaluation is a positive one in terms of how much UNHCR, and the international system for the protection of refugees, have benefited from this partnership with the IARLJ. Still, I believe there is more we can do. I would, therefore, like to spark some reflection on possible improvements for the future. Here I have three specific thoughts for your consideration.
First, I would like to suggest that the Association might consider a more strategic review of where, region by region, members might contribute their expertise to professionalising the judicial processes in place for refugee protection. I have the sense that the activities pursued by the Association would benefit from greater thinking ahead and structured planning to ensure broader region specific coverage and spur an even broader membership base. In other words, there might be a cascading approach, from the world or international conferences, to the regional ones, and subsequently on down to sub-regions or national meetings.
Secondly, it may be timely to take a more expansive view of how and where the Association can contribute to capacity-building. The Agenda for Protection, a practical programme of action designed to improve the climate for and the delivery of protection around the world, calls on States to make more effort to assume their proper responsibilities for refugee status determination. UNHCR is currently undertaking refugee status determination in some 80 countries, 60% of whom have signed the 1951 Convention. In 2004, UNHCR made decisions concerning some 50,000 persons. In effect, UNHCR is doing refugee status determination in many countries by default. We are currently planning an initiative to promote and resource the transfer of this RSD responsibility to Signatory States, in particular. Capacity-building has to be a part of this initiative. We have had bitter experiences in the past with precipitate assumption of responsibility by states who were in actual fact unprepared - institutionally, resources-wise, or from the point of view of requisite skills - for the demands of a national procedure. We would like to explore with you how the Association might contribute to this initiative. Capacity-building goes beyond training in the basic concepts - it is about reinforcing knowledge, but also putting in place processes which respect the dictates of due process and are built on understandings that have protection at their core. Capacity building in this sense is longer-term; it is about attitudes, relationships and institution building; it is dependent on getting to know a country, its legal and administrative traditions [including, where relevant, the place of traditional justice systems], as well as the particular challenges faced by a developing country. In this latter context it is about innovative thinking, such as how to make roving or mobile courts effective dispensers of fair justice.
Recently, new capacity building opportunities have opened up as a result of certain regional initiatives. One to mention, in particular, is the Mexico Plan of Action for Enhancing International Refugee Protection in Latin America. It was adopted in November 2004 in connection with 20th anniversary celebrations of the 1984 Cartagena Declaration. The Plan envisages inter alia activities to build decision making capacity of judges in the region through doctrine development, training and institution building.
The issues are, of course, not only, or even principally, in the developing countries. There is quite a challenge here in Europe. UNHCR has offered its assistance to improve the quality of first instance decision making in some big partner countries. That this is needed is evidenced by the fact, not least, of the high turnover rate on appeals. Investment in the first stage of the process - in solid training of decision makers, informed interpretation and application of the refugee definition, in interview practices, in the use of interpreters, and in the country of origin information base, to name a few - is an investment in more timely protection, earlier solutions, and the overall credibility of the system in the public mind. It also reduces the costs to the taxpayer. This reasoning has encouraged us to launch a Quality Initiative Project which we hope to expand to a number of recipient countries. A resource here might well be the IARLJ.
The Agenda for Protection also calls on UNHCR to improve the consistency and quality of our own mandate status determination processes. We will continue to do refugee status determination in many countries for the foreseeable future and hence are making efforts to improve our processes. It is clear, however, that we will continue to have to grapple with unforeseen increases in caseloads, or sudden backlogs. In these circumstances, the injection of new resources into operations for limited periods of time can make all the difference - that is, as long as the individuals concerned do not have too steep a learning curve. We could discuss with you how to improve our cooperation in this area as well.
My third point goes back to the beginnings of an arrangement we had with the Association during the Global Consultations era, several years ago. The idea that was piloted, but which never really matured, was that the IARLJ could play the role of "sounding board", off which to bounce evolving new understandings or interpretations gaining currency in the protection area. UNHCR is a repository of extensive knowledge and expertise here, and is obviously strong on the legal aspects of the Convention and its definition. The ingenuity of some governments is, however, boundless when it comes to new restrictive measures, new forms of persecution, or ideas like "offshore" processing. It would be useful for UNHCR, from time and on a strictly confidential, non-attributable basis, to be able to draw on the legal expertise and reasoning skills of some of your members, to help us think our way through the issues also from a practitioner's perspective.
In summing up, let me reiterate that UNHCR is very grateful for the work of the Association. If I have offered some perspectives on possible roads ahead, it is in this spirit and because we very much believe that there is even more potential to tap for a mutually beneficial relationship between your members and our organisation. I hope that the agenda for this meeting will allow for some discussion of these ideas.
Refugees are high on the agendas of politicians, the press and the domestic public. This makes status determination and ensuring respect for the rights at stake a high profile, often stressful responsibility, potentially quite vulnerable to compromise. It certainly assists here to keep always to the fore why one does this work - and for whom. The words of the President of Latvia, at the opening of the Ministerial Meeting of States Parties to the 1951 Convention and 1967 Protocol [held in Geneva in December 2001] are, I believe a salutary note on which to end. She said:
"I entreat you, when you think about the problem of refugees to think of them not in the abstract. Do not think of them in the bureaucratic language of "decisions" and "determinations" and "priorities." I entreat you, think of human beings who are touched by your decisions. Think of the lives who wait on your help."
Thank you very much.