Statement by Dennis McNamara, Director, Division of International Protection, UNHCR, at the Hebrew University of Jerusalem
"The 1951 Convention and International Protection"
First, I would like to thank Professor Kretzmer and the Hebrew University of Jerusalem for inviting me to speak to you today. The invitation to address such a distinguished gathering bears witness to the fact that issues of forced displacement have in recent years risen sharply on the international agenda. Population displacement, whether internal or international, has become a major political, security and socio-economic issue, affecting national regional and global stability. It is the frequent subject of prime time television and of international discussions. Unfortunately, focus today does not necessarily mean in-depth analysis, and I welcome the opportunity to address in a little more depth the related legal and political aspects of this complex issue. And of course, Israel has had a particularly long and proud history of dealing with refugee issues over many decades. Your solidarity and experience are especially valuable for UNHCR.
My remarks will seek to draw some simple outlines of the 1951 Convention and the regime of refugee protection to which it gave rise. I will also try to highlight some key features and components of the institution of asylum, and to reflect on what I see as the realism and balance inherent in the refugee protection system. I would hope that in this process I will cover some aspects relevant to consideration of national refugee legislation.
Refugee Protection – Introduction
The international refugee protection regime was born out of the horrors of two world wars and their humanitarian aftermath. International law recognises that refugees – formally defined as individuals who flee their country because of fear of persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, who cannot rely on the protection of their own government – have specific problems, different from other nationals or migrants. It has therefore provided refugees with a regime of special protection. The loss of national protection is the key element of the refugee definition. UNHCR's mandate is to provide international protection to refugees and to find permanent solutions to their uprootedness.
Population movements are indicative of turmoil, conflict or fundamental political and socio-economic adjustment. When UNHCR was established in 1950, the problem was essentially one of a remaining million individuals who had fled Nazism & communism in Europe. UNHCR's work was mainly of a legal nature, to ease entry and integration, based on the 1951 UN Convention relating to the Status of Refugees. UNHCR was set up as a protection agency, barred from appealing for funds for assistance or resettling refugees.
By the sixties and early seventies, new developments, among them the process and decolonisation and liberation in Africa and Asia, led to large-scale (rather than individual) displacement in developing countries. There was strong solidarity for those fleeing the consequences of national liberation struggles. Refugees were generously received in neighbouring countries, supported by the international community until they were able to return to their newly independent countries. The 1969 OAU Refugee Convention acknowledged this new dimension of the refugee problem by expanding the refugee definition to cover the victims of conflict and generalised violence.
In the following two decades, the numbers of refugees grew exponentially as a result of wars fuelled by super-power rivalry and aggravated by socio-economic problems of developing countries. In this bi-polar world, the prospects for lasting political solutions to refugee-producing conflicts – in Afghanistan, Vietnam, Mozambique, Ethiopia or Cambodia – seemed virtually non-existent. UNHCR had little option but to embark on prolonged aid programmes for millions of refugees in overcrowded camps.
Currently, the 30-plus international conflicts around the globe are as complex as they are diverse. Great Power rivalry and proxy wars have been replaced by internal ethnic conflicts, collapsing state structures, 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 displacement on a massive scale, in some cases accompanied by the destruction of normal state structures.
Of the more than 20 million people of concern to UNHCR today, some 13 million are "refugees" – those who have crossed an international border in search of protection. More than 80% are women and children. 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 some 5 million returnees (refugees who have returned to their own countries, but still require our care and sometimes protection during the early phases of their reintegration in post-conflict societies). The political impact of these population displacements is much greater than the numbers would suggest. For many developing countries, the burden of hosting a few thousand refugees is measured, not only in economic and social terms, but often more sensitively in the context of national security and inter-State relations.
The international law framework
The refugee protection regime is not built merely on so-called "soft" principles (in legal terms) of human rights and morality. It is solidly founded on treaty obligations, namely those flowing from the 1951 Convention and its 1967 Protocol, and from a variety of regional instruments such as the OAU Convention of 1969, and the Cartagena Declaration of 1984.
The legal framework for refugee protection is not, however, confined to the Convention and the Protocol. Refugee law does not stand alone, but is supplemented, reinforced, and sometimes even dependent on principles of human rights law and international humanitarian law. All these branches of law constitute a network of universally applicable norms on whose observance the protection of refugees rests.
I will spend some minutes on the 1951 Convention because it was the genesis of the system for refugee protection as we know it today, and it remains at the heart of the mosaic of norms which serve the interests of refugees.
The 1951 Convention was born in a peculiar political and historical context. It is commonly accepted that its original rationales were closely related to Nazi persecution and the response of Western States to the perceived communist threat. What is remarkable is that despite its relatively narrow antecedents, the Convention continues to be relevant in a world which is radically different from that in which it was born.
The Refugee Convention is remarkable for the realism and balance in its provisions. The drafters were very conscious of the fact that international protection for refugees qualifies the scope of discretion States would normally have in their dealings with non-citizens. A good illustration is afforded by Article 31, which provides that refugees may not be penalised for illegal entry into a country, provided that they present themselves without delay to the authorities and show good cause for their illegal entry.
The Convention's Preamble acknowledges that "the grant of asylum may place unduly heavy burdens on certain countries". The drafters were well aware of the resource implications of granting asylum. They also recognised the need to set standards of treatment for refugees which would be realistic in relation to the rights of nationals. The 1951 Convention conceives of a scale of standards of treatment, depending on the specific refugee rights in question. For example, under Articles 14 and 16 (artistic rights and access to courts respectively), provision is made for "treatment as accorded to nationals of the State party..". Where, however, the right of association and wage-earning employment are addressed (Articles 15 and 17), the prescribed standard is "the most favourable treatment accorded to nationals of a foreign country". Elsewhere in the Convention provision is made for "treatment as favourable as possible, but in any event, not less favourable than that accorded generally to aliens in the same circumstances."
The political realism of the 1951 Convention is further demonstrated in the cessation and exclusion clauses of Articles 1 C, 1 D, 1 E, and 1 F. The first of these addresses the fact that refugee status is not expected to be a permanent condition. Once the reasons which led to recognition of such status no longer hold true, refugee status may be legitimately terminated. For example, if a country of origin which previously generated mass refugee outflows emerges from a conflict into an era of genuine and durable peace and stability, States parties may make a "declaration of cessation", to the effect that persons from that country should be able to avail themselves of the protection of that country.
The exclusion clauses of Article 1 F have been referred to as the "sanction" of the 1951 Convention. These clauses provide that persons who may otherwise satisfy the criteria for refugee status cannot claim the benefits of refugee protection, if they have committed grave offences such as crimes against peace, war crimes, crimes against humanity, or acts contrary to the principles and purposes of the United Nations. The purpose of this clause is to ensure that the integrity of the institution of asylum is not compromised by the award of refugee status to those who do not deserve it.
This is a vexing current problem. For example, in the Rwandan refugee camps in the Great Lakes region, UNHCR has been confronted with the complex task of seeking to encourage States to apply the exclusion clause to the perpetrators of genocide and war crimes sheltering among innocent civilian refugees. Most states in the region have agreed to try to do so, despite serious practical and legal obstacles to implementation, and in some locations, a high degree of physical danger. Many among these groups remain armed. Other problems include finding safe and accessible places to accommodate those to be screened in very remote locations; difficulties in fact finding, determining credibility, and problems of proof in applying the exclusion clause to those suspected of involvement in the genocide; and the security risks which are inevitably entailed in conducting an exercise of this nature.
Regarding exclusion, I should also mention that UNHCR's competence does not extend to Palestinian refugees within the UNRWA area of operations.(Lebanon, Jordan, Syria, Palestinian territories). However, the Office has consistently taken the view that Palestinians outside this area can benefit from its protection and assistance, unless of course they fall under any of the exclusion or cessation clauses.
Duties of Refugees and Expulsion
The balance of the 1951 Convention is further illustrated in Article 2, which stipulates that refugees bear a duty to conform to the laws and regulations of the asylum State, reflecting the basis of reciprocal rights and obligations between the host State and individual refugees.
Articles 32 and 33 (2) deal with those exceptional circumstances under which a refugee may be expelled from the country of asylum. These articles acknowledge that there are indeed some extraordinary situations in which the national security and public order of a State may take precedence over the right to asylum.
International Protection – A Shared Responsibility
I have tried to emphasis that the 1951 Convention valiantly strives to capture the delicate balance between the interests of States and that of the individual refugee. States are expected to respect and comply with the precepts of refugee protection because their interests and concerns are deemed compatible with humanitarian action on behalf of refugees, and are reflected in the provisions of the Convention.
UNHCR is required to supervise the application of the Convention's provisions. This means that UNHCR may prompt, facilitate, oversee, and support the process of State responsibility- but cannot substitute for it. Refugee protection is at heart a shared responsibility. Its crucial premise is political support and universal respect for the rule of law. Countries of origin, countries of asylum and donor States, members of the Security Council, the General Assembly, and UNHCR's Executive Committee, supported by UNHCR, need to play their full roles if the system is to work.
Refugee Protection in Practice: Standard Setting, Regional Initiatives, and National Legislation
Like most treaties, the 1951 Convention is neither perfect nor all-embracing. For example, where questions of interpretation or construction arise, its travaux preparatoires are not always a clear guide to the intentions of its drafters. The Convention contains no express provisions regarding such key dimensions of the refugee regime as status determination procedures, the principle of family unity, the special place of women and children, or the terms and appropriate conditions for solutions. These gaps provide States and UNHCR with opportunities to progressively develop the precepts of refugee law, and to adapt them to changing international developments.
Through standard-setting, the basic principles laid out in the 1951 Convention – or areas not expressly addressed – may be elaborated or developed, within a legal framework, with a view to facilitate practical implementation. UNHCR works together with States in this area, through developing guidelines such as the Handbook on Procedures and Criteria for Refugee Status, which provides a commentary on the standards to be applied in the determination of refugee status, and elaborates on areas not dealt with in the 1951 Convention, including war refugees, deserters, family unity, and unaccompanied minors which are not. Other guidelines relating to the protection of refugee women and children, resettlement and voluntary repatriation have also been developed, and provide frameworks for responding to the special needs of the most vulnerable refugee categories.
Progressive development of the refugee regime has also taken place within the framework of regional organisations, such as the OAU, the OAS, & the EU. Positive developments have also occurred through sub-regional bodies and conferences, as for example, the CIS Conference in the emerging states of the Former Soviet Union, SADC in South Africa, CIREFCA in Latin America, and the OSCE in Europe, and the CPA for Indochinese refugees in Southeast Asia. These fora and mechanisms have the advantage of placing refugee issues and other matters of forced displacement within the larger context of socio-economic, security, and development issues. In some instances, regional approaches have helped to generate the necessary political backing for more effective implementation of refugee protection.
National Legislation: General Observations
National legislation should be a positive instrument for the progressive development of the global system for refugee protection. As for other treaties with domestic implications, national legislation "brings the 1951 Convention home" by giving its universal precepts a national application, and by creating mechanisms for giving effect to its objects and purposes.
UNHCR makes considerable efforts to offer support and guidance for the drafting of national legislation on refugee related issues. We encourage States to develop legislation which meets their specific needs, but which retain the essential humanitarian imperatives of the 1951 Convention. For example, national legislation should not derogate from those core provisions of the 1951 Convention to which no reservations are permitted. (These include Article 1 on the definition of "refugee"; Article 3 relating to non-discrimination; Article 4 on religious freedoms of refugees; Article 16 (1) relating to access of refugees to courts of law; and the principle of non-refoulement in Article 33 (1)).
National legislation is also an important means by which to reaffirm the delicate balance between the interests of the State on the one hand, and the humanitarian needs of asylum-seekers and refugees on the other. Legislation also provides the essential basis for refugee status determination, a key state responsibility under the Convention.
Aspects of the Institution of Asylum
The institution of asylum – which is built around Article 14 (1) of the UDHR – is at the core of the system of international refugee protection. This institution is a dynamic one with several inter-related components, all of which are important, and all of which demand the observance of States.
Asylum is, of course, more than mere admission and safe haven, although this is not always clearly acknowledged. Its essential components include: the principle of non-refoulement; admission to safety; access to fair procedures; and humane standards of treatment across the spectrum of basic human rights, including attention to material needs. These components may be regarded as a rough guide to the areas which national refugee legislation should ideally cover.
Asylum in this broad sense is the litmus test of the refugee protection system. When it fails, the whole system is fundamentally challenged. Random examples of some of the more dramatic failures to respect basic principles of asylum and international treaty obligations in recent years include:
- In the Great Lakes region, the systematic pursuit, hunting down and killing of desperate refugees over many months, often with the lure of humanitarian assistance
- Mass roundups, relocation and expulsion of thousands of refugees from eastern Zaire
- Calls from some EU States for less binding options to deal with new refugee influxes, such as a recent Austrian proposal to EU, which even go so far as to propose that the 1951 Refugee Convention is no longer relevant and States should have unfettered political and administrative discretion to refuse admission, or to expel new arrivals, without due process
- Recent amendments to immigration legislation in the USA which introduce restrictive provision which, in UNHCR's opinion, impede the USA's ability to implement its treaty obligations regarding refugees.
- Neighbouring states refusing to admit to safety boatloads of women and children fleeing the recent horrendous human rights violations in Sierre Leone, many who have had limbs amputated by machete as a form of grotesque torture by rebel forces
The principle of non-refoulement is the sine qua non of the asylum institution. Since it was articulated in Article 33 of the Convention, the principle has been consistently affirmed in State practice in a manner which recognises its normative character. It has also been frequently reflected in various international and regional instruments, in resolutions of the General Assembly, and in Conclusions of UNHCR's Executive Committee. This weight of evidence affirms that the principle of non-refoulment has now acquired the status of a norm of customary international law.
Non-refoulement protects both refugees and asylum-seekers from return to places where their life or freedom may be threatened. Formal recognition as a refugee is not a prerequisite for protection from refoulement. If the institution of asylum is to have any meaning, asylum-seekers must be protected from possible refoulement for a sufficient duration to allow their refugee claims to be determined through fair procedures.
Admission to safety, access to fair procedures for the determination of refugee status, and humane treatment are logical extensions of the non-refoulement principle. These components reflect the convergence of refugee protection with human rights law, as the required standards are essentially human rights standards. States are expected to act expeditiously and with humanity when admitting individuals to safety and providing them with access to fair procedures.
In order to be truly fair, procedures for status determination should respect the full spectrum of due process rights, including the right to independent review. Efficiency is also important where long delays may keep applications in difficult limbo, for example, and thereby detract from the quality of asylum.
While their refugee claims are pending, asylum-seekers should be treated in a manner which respects their dignity as human beings. In this regard, I would like to dwell briefly on the issue of the detention of asylum-seekers, and the increasing trend in many countries to use detention of asylum-seekers as part of a standard, almost routine response. This policy is generally presented publicly as a means of ensuring that so-called "bogus" refugees do not abscond before they can be removed. The real objective is often to deter misuse of the asylum system, and often to deter even bona fide asylum seekers from approaching the country at all.
In UNHCR's view, the detention of asylum-seekers is inherently undesirable, particularly where it involves the prolonged and sometimes arbitrary incarceration of women, children, and persons with special medical or psychological needs. Freedom from arbitrary detention is a fundamental human right, and the use of detention is in many instances contrary to principles of international law.
UNHCR has constantly urged States to explore alternatives to detention which achieve a balance between the States' concerns and the asylum-seeker's entitlement to fundamental freedoms. Such alternatives could include: reporting requirements (asylum-seekers required to report at regular intervals to the authorities during the RSD procedure); residency requirements (asylum-seekers required to reside at a specific address or within a particular administrative region); and the establishment of Open Centres (asylum-seekers allowed to obtain permission to leave and return during stipulated times). Within the framework of these alternatives, detention should be considered as the last resort and the ultimate sanction for frequent violations of essential reporting and monitoring requirements.
In the event that they are detained, asylum-seekers should be entitled to procedural guarantees. They should be informed of the reasons and terms of their detention, be afforded the right to counsel, access to legal assistance, and the right to appeal against detention. Conditions of detention should always be consistent with humane minimum standards. Asylum-seekers should not be held in the same facilities as criminal suspects or convicts, and they should be allowed visits from friends and relatives, and access to adequate medical and psychological care.
The international refugee protection system offers viable mechanisms through which States and the international community can respond to those in need of international protection, without compromising the vital interests of States. I would submit that given the complexity and magnitude of today's refugee problems, there is an increasing need to recognise that the interests of States can be reconciled with humanitarian action, and are not in conflict.
It is obvious that the protection regime has not always enjoyed consensus and compliance among States. In some instances, the humane premises of the protection regime have been displaced by restrictive policies, while in others, States have challenged or violated fundamental principles with impunity. On occasion, despite UNHCR's supervisory responsibilities, UNHCR's views on issues are not fully taken into account, and sometimes the exercise of this responsibility is openly resisted by States.
When these aberrations inevitably occur, we need to resist the temptation to suggest that the flaw lies with the system itself, rather than with its implementation. The refugee protection system is inherently realistic because it incorporates a workable balance between protection principles and legitimate State concerns. There is no doubt that as times change, the 1951 Convention regime may require adaptation and adjustment to bring it in line with emerging international developments. Such flexibility cannot however, be at the cost of abandoning core principles.
Despite globalisation, extreme nationalism is on the rise, and is increasingly responsible for the development of restrictive governmental policies towards refugees and asylum-seekers. While refugees may place difficult burdens on countries with struggling economies, we need to keep in mind that refugees also enrich the societies where they are granted asylum. Each one of us, whether a government employee, an intergovernmental or non-governmental organisation, or a member of the academic world, has an obligation to do whatever he or she can to correct injustice, and to speak out on behalf the world's dispossessed. We have a T-shirt at UNHCR which says that UNHCR is "the voice of the voiceless" – it is up to all of us to ensure that in our societies, the voice of refugees and asylum-seekers continues to be heard.
I would like to end here by recalling the words of Martin Niemoller, the German theologist, on Nazi persecution. While these words are very often repeated, I can think of no more apt warning on the dangers of passivity in the face of the challenges to refugee protection which we face today. I quote:
"In Germany they came first for the Communists, and I did not speak up because I was not a communist. Then they came for the Jews, and I did not speak up because I was not a Jew. Then they came for the trade unionist, and I did not speak up because I was not a trade unionist. Then they came for the Catholics, and I did not speak up because I was a Protestant. And then they came for me, and by that time there was no one left to speak up."
Disclaimer: © UNHCR