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Challenges to the 1951 Convention in its
50th Anniversary Year
Erika Feller, Director
Department of International Protection, UNHCR
Seminar on “International Protection within one single asylum procedure”
Norrkoping, Sweden, 23-24 April 2001
Minister, Director-General, Mr. Chairman, colleagues and friends,
The year 2001 is the 50th anniversary year of the foundation refugee protection instrument, the 1951 UN Convention relating to the Status of Refugees. The European Union countries, at their Special Council meeting in Tampere, Finland, in October 1999, did a particularly valuable service for this instrument when they reaffirmed "the importance the Union and member states attach to absolute respect of the right to seek asylum" and "agreed to work towards establishing a Common European Asylum system based on the full and inclusive application of the Geneva Convention". Our seminar today takes place under the EU Presidency of a country clearly concerned for refugees and with a strong, demonstrated commitment to their protection. It offers a timely and welcome opportunity for some reflection about this central refugee instrument and how to promote its full and inclusive application. It also allows us the possibility to look more closely at the place of the Convention in the complicated process European countries have embarked upon of developing common policies on asylum and migration which respect both the dictates of border control, but also the principles guaranteeing protection to those who may need it within the European space.
UNHCR welcomed the Tampere Summit conclusions because they stood, not least, as crucial acknowledgement by our major support constituency of the ongoing relevance of the 1951 Convention, even in today’s somewhat changed environment for refugee protection, as well as of the need for its effective implementation. We appreciated that the Convention was thereby accepted as the starting point for harmonisation of European asylum standards and procedures, or, put another way, as the instrument which should set the framing limits for what will be legislated for in the EU. Of course, we are clear sighted enough to recognise that this is easier to acknowledge than fully to achieve, in the face, particularly, of migration dilemmas and the costs of various sorts involved in hosting significant numbers of asylum seekers.
I would like to devote a little time to looking more closely at the notion of “full and inclusive application of the Convention”, as this, in our view, is crucial to the Convention being able to serve in practice as the frame for harmonisation and a single procedure. For us this notion has, perhaps, two critical dimensions. At the conceptual level, full and inclusive application requires a flexible and shared interpretation of the terms of the Convention, in particular its definition. This interpretation has, moreover, to be consistent with the objects and purposes of the instrument, not only its letter. At another level, side by side with a proper interpretation of the Convention, there has to be genuine commitment to implement it. Let me take these two aspects separately.
As regards proper interpretation of the Convention, there are already well established international law rules for interpreting treaties, which have been codified quite comprehensively in the 1969 Vienna Convention on the Law of Treaties. This latter Convention can be said to place a premium on the principle of effectiveness, by requiring interpretation in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty, in their context, and in light of their objects and purposes. The Preamble of a treaty is one source of its purposes. The Preamble to the 1951 Convention states its aim inter alia as to ensure that human beings shall enjoy fundamental rights and freedoms without discrimination, as well as to assure refugees the widest possible exercise of fundamental rights and freedoms. The Convention is thus a rather specific rights protection instrument. This being so, it is of fundamental importance that its provisions be interpreted to make its safeguards practical and effective, which in turn, consistent with the 1995 judgement in the European Court of Human Rights case of Loizidou v. Turkey, requires that it be treated as a living instrument, understood in the light of present day conditions, not solely in accordance with such intentions as the authors may have expressly set out at the time of drafting.
UNHCR also takes the position that treaties of a humanitarian character are not static instruments, but are to be interpreted in more “evolutionary” terms, taking into consideration the changes that have occurred in the period since their conclusion. The 1951 Convention must accordingly be construed to cover situations which, whether or not so mentioned by its drafters 50 years ago, clearly come within the spirit of its terms. It is interesting to note here that the UK House of Lords, in the Aden case of December 2000, accepted that “the signatory States intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and future world.”
If I have dwelt at some length on this point, it is because there has been a tendency over recent times for decision-makers to focus more on the letter of the Convention than on its purposes, much less its spirit. It has become as such, for those so inclined, an instrument to restrict responsibility to the minimum, rather than to ensure protection to legitimate beneficiaries. We see this particularly clearly in the approach taken to the definition provisions of Article 1 which has led, in some countries, for example to rejection for refugee status of persons who fear persecution by non-State agents, even if for 1951 Convention reasons. Similarly persons victimised by persecution in on-going conflict situations are often treated as “victims of indiscriminate violence”, not refugees, regardless of whether the conflict they flee is rooted in ethnic, religious or political differences which specifically force flight. This restrictive approach to applying the definition is of concern to UNHCR, even where States provide an alternative form of protection, to meet the demonstrated need. I will return later to the issue of subsidiary forms of protection.
Gender based violence is another form of behaviour where, when it reaches the level of persecution, must, in our understanding, be covered by the Convention. This view has, though, not always won full acceptance from decision-makers because of the lack of an express reference to “gender” in the Convention’s grounds. In our view, this is a question of interpretation which has unfortunately become rooted in cultural and social perceptions even prejudices, rather than good law. Certain offences have traditionally been held to be outside the proper application of the 1951 Convention, because they were classified, at worst, as regrettable acts of human excess, or failures in personal judgement, rather than as what they actually were, that is violations of fundamental rights, capable of incalculable, even if on occasion more invisible, harm. There is an ever growing need to interpret the refugee definition in a gender sensitive way. UNHCR’s position is that violence with a basis in gender is as persecutory in Convention terms as any other violence when the harm inflicted is sufficiently serious. Where it can be linked to a Convention ground, the definition applies and it does not matter that the Convention is silent on gender as a ground for persecution, just as it does not matter that the crime is gender-specific, with women as its victims.
Turning now to the second element inherent in the notion of “full and inclusive application”, that is effective implementation, a prerequisite here is obviously the will to implement. This has, unfortunately, not always been present, where States assess that the obstacles confronting implementation are too strong an impediment. Some have felt compelled to argue that the complexities of modern population movements have rendered the Convention outdated, unworkable, or irrelevant, even an unacceptably complicating factor in today’s migration environment. In particular, the Convention has been criticized as being over rigid in the face of important migration challenges.
There are, however, many more voices, among them UNHCR’s, to the contrary. The Convention 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 immigration related issues including the sovereign right to regulate entry across borders, but only with a view to introducing the compelling exception for a clear category of individuals in need of protection. The Convention was never drafted to be an instrument for permanent migration settlement, much less for migration control. It is not, in UNHCR’s view, supportable that proper implementation of a refugee protection instrument should lose its priority in the face of migration challenges which have no formal or direct relationship to its intended purposes.
This being said, we recognise that the Convention is under challenge in a number of important ways today, which put to the test its resilience and the scope of its application. Any listing of such challenges would have to include the following:
- The changed displacement environment in which the Convention must operate, which certainly demands some flexibility in its application;
- The growth of irregular migration and smuggling of people for profit, which has led to a crowding of the space in which the Convention has to operate;
- The discrepancies between, variously, Convention refugees, the broader class of persons in need of international protection to whom UNHCR's competence has been extended, and persons for whom States explicitly have accepted responsibilities under the 1951 Convention; there is a need at this point for some rationalisation of responsibilities, to introduce greater coherence;
- Then there is the related issue of the growing number of subsidiary forms of protection which States, not least in Europe, develop often as less onerous alternatives to the Convention based protections; again these limit the room allowed to the Convention to operate as it could or should;
-The growth of additional forms of protection also at the international level, particularly through the human rights instruments and mechanisms, whose complementarity with the Convention requires clear delineation;
- Efforts to develop regionally specific legal frameworks for handling refugee and asylum demands, which carry with them the real, if unintended, threat of a degree of redundancy for the Convention in some parts of the world, and the concomitant problem that its international applicability is put into question;
- And, finally and significant amongst those challenges on this list, the “integrationist” approach taken to the Convention’s application over the 50 years of its existence, which has given birth to systems to implement the Convention not well enough attuned to mass arrivals, or even large numbers of individual asylum-seekers. Applying the Convention in mass arrival situations poses problems in many parts of the world.
In short, while the Convention remains, and has to remain, the foundation of refugee protection, it is being chipped away from all sides at the moment. How to reinforce it, reinvigorate it and ensure its “full and inclusive application” for the decades to come is a common concern for all of us. We do, though, need to try. The 1951 Convention is the one truly universal instrument setting out the baseline principles on which the international protection of refugees has to be built. As we have oft had cause to comment, it has a legal, political, and ethical significance that goes well beyond its specific terms. If we lose this instrument, the likelihood of it being replaced by anything approaching its value is remote. It is for this reason that UNHCR has invested quite some effort recently to strengthen the application of the Convention through targeted strategies to address, variously:
- the deteriorating quality of asylum;
- the current gaps in the protection framework;
- and the inconsistencies between regional approaches and international standards.
You will all be well aware of UNHCR’s Global Consultations on International Protection, so I will not go into their background. The main themes these Consultations will tackle are the protection of refugees in mass influx situations, protection of refugees in the context of individual asylum systems, including difficulties arising from the migration - asylum nexus, and the search for protection-based solutions. From the optic of our discussions today, this process should help to crystallise inter alia the problems confronting proper implementation of the 1951 Convention and hopefully will ultimately facilitate the task, not only of UNHCR, but also of EU States working to strengthen asylum processes with the Convention as their base.
There are a number of issues on the Global Consultations agenda which are specifically on the agenda of the EU harmonization process. Complementary forms of protection, one of this seminar’s themes, is one such example. Through the Global Consultations, we hope it will become clearer that complementary forms of protection, put in place to ensure that protection is accessible to a wider group of persons, are a positive way of responding pragmatically to certain protection needs, as long as the criteria for refugee status in the 1951 Convention retain their proper sway. This means that refugees who would fulfil the Convention criteria should be recognised and protected under that instrument, rather than being relegated to complementary protection schemes. There should be appropriate measures in place to allow the provision of complementary protection in a manner that strengthens, rather than undermines, the existing global refugee protection regime. Otherwise it makes little sense to talk of a “full and inclusive application of the 1951 Convention”. As regards the various complementary protections themselves, our position is that they must contain guarantees for the protection of basic civil, political, social and economic rights, and that they be harmonised to the extent possible in terms of the treatment provided. Also they should be implemented in such a way as to ensure a sufficient measure of stability and certainty, including through provisions which respect the fundamental principle of family unity.
Aside from subsidiary protection at the national level, there are also complementary protections starting to appear at the international level, including notably those in place through the human rights instruments. In UNHCR’s view, they too could benefit from some harmonization, not least vis-à-vis the 1951 Convention. The possibility of resort to human rights instruments is an important complement to 1951 Convention protection, where the Convention is not being properly applied or, for whatever reason, is not directly applicable. However this has its own complications, particularly in the absence of guarantees of a comparable security of stay and access to basic rights. The reality is that adjudicators have not – yet – taken human rights law sufficiently in this direction. ECHR jurisprudence, for example, is silent both about the status of those whom it protects and the social rights which must be attached. Often States are left simply to adapt their immigration regulations to accommodate duties under the non-refoulement clauses of human rights instruments. Resort to human rights instead of refugee protection concepts as the basis for stay, in the absence of any consequential obligations, could become the politically more popular alternative. Yet it would be the notably less beneficial one for refugees. From this perspective, human rights protections could, without further development, start to pose a threat to the vibrant survival of Convention refugee status in the modern world. The challenge here is for the Convention to co-exist and be complemented by these new forms of protection, without them coming to serve as restrictions on the more flexible application of the Convention.
As is clear from the foregoing, there are a multiplicity of protection alternatives. Would one single procedure to consider and adjudicate them contribute to the better implementation of the 1951 Convention? Our sense is yes. Many States which now offer complementary forms of protection have currently several different, parallel proceedings for determining protection needs. If an asylum-seeker is determined not to be a 1951 Convention refugee, he or she then needs to enter another application for a different form of protection or stay. A consolidated proceeding should offer all applicants a clearer and presumably faster determination, minimising the risk of failing to meet time limitations or otherwise "falling through the cracks" in a multi-procedural system. For States it could prove less expensive and require fewer resources from appellate or other governmental bodies participating. It could also allow, potentially, a more thorough assessment at first instance by an expert body that could truly take into account all the circumstances of the case, unconstrained by particular jurisdictional limitations. Hence, UNHCR would see merit in a single procedure within a State as the more economical and less fragmented approach to determining protection needs. It would also be one which should lend itself more readily to transformation into the common European asylum procedure, with uniform status, that Tampere envisions. The single procedure approach must, though, avoid any tendency to re-define protection down to the most basic of obligations – that of non-refoulement alone. At the same time, the status of refugee must be one which continues to be conferred, consistent with the provisions of the 1951 Convention and carrying with it all rights and responsibilities deriving from this status. It should not be forgotten, in this regard, that refugee status entails certain rights which are also extra-territorial and, for these to be accessed, status must formally have been granted.
As we reflect on the desirability and characteristics of a single procedure, for UNHCR there are several overarching considerations. The scope of the 1951 Convention refugee definition is a matter of international law and its interpretation should not be subject to variations deriving from idiosyncratic, legal, cultural or political determinants in any one State. Similarly, the true meaning of the refugee concept must be determined independently from the financial or other costs attaching to the granting of asylum, from the difficulties besetting management of asylum procedures, or from any other limitations on a State’s capacity or willingness to meet obligations as regards treatment of refugees. Employing a restrictive interpretation of the refuge definition will not help reduce the numbers of non-refugee migrants claiming asylum.
I began by observing that this is the 50th Anniversary year of the Convention. To commemorate the occasion, UNHCR and Switzerland will co-sponsor the first-ever meeting of States Parties. Yet the meeting, which will be held at the ministerial level in Geneva on 12 December, is not only a commemoration. UNHCR believes that it is both important and timely to use the occasion for all States Parties to the Convention jointly to reaffirm their commitment to the framework for refugee protection which the Convention embodies. Conceived as an integral part of the Global Consultations process, this meeting should, we hope, also facilitate the process in States that are Parties to withdraw any reservations that they may have lodged at the time of their accession, while encouraging States that are not yet Parties to the Convention and Protocol to accede to these instruments. The Ministerial Meeting of States Parties will also afford an opportunity to States to exchange views on how best to build upon the Convention system so as to ensure that aspects of the global refugee situation that are not adequately addressed also benefit from an effective response. To inform the discussion, UNHCR will submit for information a comprehensive, albeit provisional, Agenda for Protection which will be devised through the Global Consultations process. We count on the active participation of EU Member States to this collective process of reflection. This seminar promises to make a very positive contribution and we wish it every success.