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International Refugee Protection 50 Years On: The
Protection Challenges Of The Past, Present And
Future Nsongurua J.
Udombana
continued from last edition
Trafficking and human smuggling have been a
compounding feature. Increasingly, being smuggled to
sanctuary has become an important option for
asylum-seekers, but one which carries a price tag.
An asylum.-seeker who has resorted to a trafficker
has seriously compromised his or her claim in the
eyes of many States, and has consequently had to
face a sort of double criminality: not only has he
or she flouted national borders, but also has
consorted with criminal trafficking gangs to do so,
to the point where the claim in question has become
tainted and measures which restrict fundamental
privileges have been seen as more than justified.
There has been a slow but steady growth in
processes, laws and concepts whose compatibility
with the prevailing protection framework is ever
more tenuous. Some States have reverted to an overly
restrictive application of the 1951 Convention and
its 1967 Protocol, coupled with the erection of a
formidable range of obstacles to prevent legal and
physical access to territory (i.e. interdiction and
interception). This has been accompanied by an
inappropriate use of otherwise useful asylum-related
notions such as "safe country", "internal flight
alternative" or "manifestly unfounded claims" and
the emergence of a bewildering myriad of alternative
protection regimes of more limited duration and
guaranteeing lesser rights when compared to those of
the 1951 Convention. Increased detention, reduced
welfare benefits and severe curtailment of
self-sufficiency possibilities, coupled with
restricted family reunification rights, have all
been manifestations of this trend.
There has furthermore been the tendency in some
States to move away from an objective and law-based
system altogether. Instead of a process which is
protected by the rule of law and overseen by an
independent judiciary, some national asylum systems
are resting increasingly on ad hoc and subjective
procedures built around the exercise of executive
discretion. Such discretionary forms of protection
provide lesser safeguards to people of concern. In
response, 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 an
alternative source of protection. While the 1984
Convention against Torture and the 1950 European
Human Rights Convention do provide an absolute
prohibition on removal, the rights of people allowed
to remain are usually inferior to those of
recognized refugees.
Overall, the climate for the admission, processing
and treatment of asylum-seekers is less benevolent
today. Refugee issues are often heavily politicized,
even sensationalized, for a variety of domestic or
political purposes, some quite self-serving.
Attitudes, too, are inflamed by opportunistic or
ill-informed media. It is a sad fact also that, in
many cases, racist and xenophobic attacks against
refugees are being politically instigated, and
refugees are being made the scapegoat for other
inadequacies and exploited for party-political ends.
To confront these manifold challenges, there is an
urgent need to revitalize the legal principles and
ethical values that underpin asylum and refugee
protection.
1951 Convention outdated?
Some have felt compelled to argue that the
complexities of modern population movements have
rendered the 1951 Convention outdated, unworkable or
irrelevant, or even an unacceptably complicating
factor in today's migration environment. In
particular, the 1951 Convention has been criticized
as being over-rigid in the face of important
migration challenges.
There are, however, many more voices to the
contrary, including that of UNHCR itself. The 1951
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 1951
Convention was never drafted to be an instrument for
permanent migration settlement, much less for
migration control. It is unacceptable, in UNHCR' s
view, 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, I recognize that the 1951
Convention is being challenged 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
1951 Convention must operate, which certainly
demands some flexibility in its application. There
is the need to put an end to debate around such
issues as to whether the victims of violence and
persecution by non-State agents (e.g. police,
military, militia, paramilitary groups, separatist
rebels or bandits) are entitled to protection as
refugees in another State? Whether the notion of
"persecution" and the ground of "membership of a
particular social group" in the 1951 Convention can
be reasonably extended to protect women from
gender-related violence, not least rape, in the
context of conflict but also, perhaps, harmful
traditional practices or even domestic violence? If
only part of the State of origin is affected by
conflict, then how far are the victims of violence
and persecution required to seek protection inside
the State before a claim for refugee protection will
be entertained in an asylum State? In addition, what
bearing have other Conventions such as the
Convention on the Rights of the Child on the status
determination and treatment of refugee children?
The growth of irregular migration and smuggling of
people for profit has led to a crowding of the space
in which the 1951 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 have
explicitly accepted responsibilities under the 1951
Convention; at this point son1.e rationalization of
responsibilities is required to introduce greater
certainty of a protection outcome for those in need.
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 1951 Convention-based
protections. Again, these limit the room allowed to
the 1951 Convention to operate as it could or
should.
Currently, aside from subsidiary protection at the
national level, there are also complementary
protections starting to appear at the international
level, including in particular those in place
through the human rights instruments. Many States
which now offer complementary forms of protection
currently have several different, parallel
proceedings for determining protection needs. When
determining those needs, there is the challenge of
how to tailor proceedings which are less expensive
and require fewer resources from appellate or
participating governmental bodies.
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.
While accepting that new or refined notions, such as
the internal £light alternative or the safe third
country notion, as well as the safe country of
origin notion, have a place in the developing
repertoire of responses to complex displacement
situations, there is a need to establish how best to
prevent their misuse and to apply them in
protection-sensitive procedures.
The creation of actual conditions to allow return in
safety and dignity remains fundamentally a political
process going well beyond the capabilities of UNHCR.
The question here is how to enhance the preparedness
of the international community to commit itself to a
substantive and prolonged engagement in the
reinforcement of local efforts. Otherwise, there is
no sustainable solution with adequate guarantees of
protection.
Self-sufficiency is just one tool to increase
available asylum. space. Provided that the
absorption of refugees into the host community does
not economically, socially or politically
destabilize the country, the challenge is how to
enhance the preparedness of host countries to allow
local integration.
A further challenge is how best to realize the full
potential of resettlement as a tool of international
protection, as a durable solution, and also as a
means of burden- and responsibility-sharing.
While there is a general understanding that more
equitable burden- and responsibility-sharing would
quantitatively improve the political climate and the
asylum possibilities for refugees, in practice, the
challenge is how best to spread the share of
responsibilities so as to ease the asylum burden on
anyone State unable to shoulder it entirely; how to
put in place burden-sharing and not burden shifting
mechanisms; and how to trigger timely
responsibility-sharing m anyone Situation.
Finally, and significant amongst those challenges on
this list, there is the "integrationist" approach
taken to the Convention's application over the fifty
years of its existence, which has given birth to
systems to implement the Convention which are not
well enough attuned to mass arrivals or even to
large numbers of individual asylum-seekers. Applying
the Convention in mass arrival situations poses
problems in many parts of the world. The challenge
here is how to realize solutions for individuals, as
well as for refugee groups, which are both lasting
and protection-based.
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. All stakeholders in the
regime 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 indicated
above, it has a legal, political and ethical
significance that goes well beyond its specific
terms. If this instrument is lost, the likelihood of
it being replaced by anything approaching its value
is remote.
Revitalizing refugee protection
In the face of these challenges, UNHCR has invested
quite some effort recently in strengthening the
application of the Convention through targeted
strategies to address, variously:
the deteriorating quality of asylum;
the current gap in the protection framework; and
the inconsistencies between regional approaches and
international standards.
These strategies go hand in hand with a dynamic
interpretation of the 1951 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 the light of its object and purpose". The
preamble to a treaty is one source for determining
its purposes. The Preamble to the 1951 Convention
states its aim in'lter alia as being to ensure that
human beings shall enjoy fundamental rights and
freedoms without discrimination, as well as to
assure refugees the widest possible exercise of
these fundamental rights and freedoms. The
Convention is thus quite a specific rights
protection instrument. This being so, it is of
fundamental importance that its provisions be
interpreted in such a way a to make its safeguards
practical and effective, which in turn requires,
consistent with the 1995 judgment in the European
Court of Human Rights case of Loizidol/ v. Ti/rkey,
that it be treated as a living instrument and
understood in the light of present day conditions,
not solely in accordance with such intentions as the
author. may have expressly set out at the time of
drafting.
This means that the 1951 Convention should not be
seen as a static instrument but should be
interpreted in more "evolutionary" terms, taking
into consideration the changes that have occurred in
the period since its conclusion. That this
interpretation is in the spirit of the intentions of
the 1951 Convention drafters fifty years ago was
also accepted by the UK House of Lords in the Aden
case of December 2000, according to which "the
signatory States intended that the Convention should
afford continuing protection for refugees in the
changing circumstances of the present and future
world".
When dealing with the various protection challenges
in today's context, it is of paramount importance
that there be a common understanding of principles
and objectives. The following are just some issues
to be kept in mind by all stakeholders involved:
· Mass influx/ maintaining civilian character of
asylum
There is nothing inherent in the provisions of the
1951 Convention and 1967 Protocol to preclude these
instruments from being applied in mass influx
situations. Host States have the primary
responsibility for ensuring security in refugee
camps and refugee-populated areas, including the
identification and separation of armed elements.
· Interface between refugee protection and migration
control.
While fully supporting the efforts of States in
combating the criminal and organized smuggling of
persons across international borders, there is a
need to strike a balance between the repression of
criminal smuggling and the protection of
humanitarian interests and values.
· Barriers to entry
Measures such as interdiction, interception, visas,
immigration officers in countries of departure and
carriers' liability restrict access to asylum. If
such measures are taken, they should be implemented
in a manner consistent with international human
rights and refugee protection principles. If States
apply carrier sanctions, for instance, they should
exempt carriers from penalties in the case of
asylum-seekers.
· Illegal entry
Similarly, and in accordance with Article 31 of the
1951 Convention, States should not penalize refugees
for illegal entry or unnecessarily restrict the
freedom of movement of such persons.
· Detention if asylum-seekers
Detention of asylum-seekers and refugees should take
place only after full consideration of all possible
alternatives. It should be resorted to only in cases
of necessity, and therefore should not be automatic
or unduly prolonged.
· Access to asylum procedures /written decision
As a rule, all asylum-seekers, without distinction,
must be given access to refugee status determination
procedures. The examination of applications for
refugee status should at first instance allow for a
personal interview, if possible before the
decision-makers of the competent body, and should be
based on a thorough assessment of the circumstances
of each case. All applicants should receive a
written decision automatically, whether on
admissibility or the claim itself. If the claim is
rejected or declared inadmissible, the decision
should be a reasoned one.
· Single procedure
A single procedure to assess the claims of all those
seeking refugee status or other complementary
protection may in many cases represent the clearest,
swiftest means of identifying those in need of
international protection. The single procedure
approach must, though, avoid any tendency to
redefine protection down to the most basic of
obligations - that of non-rifoulelllel1t alone. At
the same time, the status of refugee must be one
which continues to be conferred in keeping with the
provisions of the 1951 Convention and carrying with
it all rights and responsibilities deriving from
this status.
· Guidance to asylum-seekers / access to
interpreters and UNHCR/NGOs
At all stages of the asylum procedure, including the
admissibility stage, asylum-seekers should receive
guidance and advice on the procedure in a language
and in terms they are able to understand and have
access to legal counsel in need. They should also
have access to qualified and impartial interpreters
and the right to contact UNHCR and recognized
non-governmental organizations (NGOs).
· Confidentiality
The asylum procedure should at all stages respect
the confidentiality of all aspects of an asylum
claim, including the fact that the asylum-seeker has
made such a request. No information on the asylum
application should be shared with the country of
origin.
· Groups with special protection needs
There should be special procedures for refugee women
and children
to be continued.
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