Statement by Mrs. Erika Feller, Director, Department of International Protection, UNHCR, at the Helsinki Conference on Human Rights (29 August 2002): "Refugee, asylum, and migration issues from a human rights perspective"

Introduction

Let me begin with a statement and with a question, both of which I intend to elaborate upon in this presentation. The statement is that refugees have rights, flowing generally from the fact of their humanity and, more directly and specifically, from their predicament. This is a self-evident acknowledgement. The question is, what are the responsibilities of states to protect those rights, when are these responsibilities engaged, and what is their content? This is a far more complex issue, not at all self-evident and, in fact, at the root of what I might call, (short of a crisis) the asylum dilemma today.

There is a gap, or a disconnect, between rights and responsibilities and it is this disconnect which has, for some time now, called for priority attention. How to bridge the gap in a way which protects the rights and meets the needs of refugees, while respecting the legitimate interests of states and the concerns of their own populations, has been a major preoccupation for UNHCR over the last few years, and particularly in the context of our Global Consultations Process on International Protection, which I will also shortly elaborate upon.

The rights side of this analysis is the easier and most appropriate place to begin it. The refugee problem is quintessentially an issue of rights - of rights which have been violated and of resulting rights, set out in international law, which have to be respected. A refugee, classically defined, is a persecuted person, denied her security of person, unable to exercise in safety her right to freedom of expression, to freedom of association, to freedom of belief, to pursue her political convictions, or just even to be who she is born to be. More broadly defined, a refugee is also someone unable to continue to live in safety where he is, due to the discriminate or even indiscriminate dangers of war or serious civil disturbance. Fleeing and seeking asylum is the only realistic option for him and his family, to protect their right to life, or security and freedom of person.

Obviously, human rights apply to all persons, with the fundamental rights to life, liberty, and security of a person deeply rooted in the value systems of all societies, and extending to all individuals, whether or not they are always respected and protected. Asylum seekers and refugees are no different from anyone else in this regard. They are entitled to benefit from the most basic protections in place in any society, regardless of the fact that they are not linked, by nationality or by habitual residence, to that society. The International Bill of Rights is quite explicit in de-linking nationality from enjoyment of the fundamental rights.

Why, then, is there a need, in addition, for a specific rights framework for refugees? The answer lies in the fact that refugees are persons in a very specific predicament which calls for additional safeguards. The conventions which make up the Bill of Rights were drafted for the norm - a world of citizens in nation states - with a primary objective being to correct somewhat the power relation between the two, given that state authorities are tasked as the primary guardians of human rights. In the case of an asylum-seeker or refugee, the link between the individual and the state formally responsible for the welfare of that person has been, at least temporarily, severed. Thus, for this person, there is no longer any state to which he or she can automatically and without question turn for protection. In practical terms this means no Embassy to rely upon, no identity documents available, and no guaranteed access to judicial and social protection mechanisms that many of us take for granted. The Universal Declaration of Human Rights, Art 14 (1) calls for respect for the right of an individual to seek and enjoy asylum from persecution, but no clear content was given to the notion of asylum at the international level until, in the wake of two world wars and mass displacement of people, the 1951 Convention relating to the Status of Refugees was adopted, and UNHCR was tasked to supervise its implementation. As of today, 144 States are parties to the Convention and/or its 1967 Protocol.

The 1951 Convention and its 1967 Protocol - Key principles and current status

The 1951 Convention relating to the Status of Refugees and its 1967 Protocol were landmarks in the setting of standards for the treatment of refugees by State parties. Together they incorporate, either directly or by way of interpretation, the basic rights of refugees, which are as relevant in the contemporary context as they were in 1951. These include:

• The right not to be returned to persecution or the threat of persecution (the principle of non-refoulement);

• The right not to be discriminated against in the grant of protection;

• The right not to be penalised for having entered into or being illegally in the country where asylum is sought, given that persons escaping persecution cannot be expected to always leave their country and enter another country in a regular manner;

• The right not to be expelled, except in specified, exceptional circumstances to protect national security or public order;

• The right to minimum, acceptable conditions of stay

The Convention regime also incorporates some foundation concepts at the heart of the protection regime which command enduring support from States. They include that:

• The protection of refugees is social and humanitarian in its nature and, therefore, should not become a cause of tension between states

• Since the grant of asylum may place unduly heavy burdens on certain countries, a satisfactory solution to the problem of refugees can only be achieved through international co-operation

This, then, is the framework of rights and understandings found to be necessary additions to the general human rights instruments, to ensure refugees have genuine and meaningful access to protection. On December 13th 2001, in the Convention's 50th anniversary year, the first ever meeting of States Parties was held at Ministerial level in Geneva. That meeting adopted a Declaration which stands as a strong statement of political commitment to upholding the values and principles of the Convention, and to implementing its provisions fully. It was, though, also recognised in this Declaration that protection today demands at the same time progressive development of the law, and additional strategies.

Participants were clear in this regard that the protection principles cannot be viewed in isolation of the broader framework in which they will be applied. UNHCR does recognise the various costs - financial, social, political or security - that the grant of asylum may entail for states. The Office has long acknowledged the importance of seeking convergence and accommodation between the legitimate interests of states and their international humanitarian responsibilities to protect refugees. This is not impossible. Far from it, UNHCR's experience is that respect for refugee rights is fully compatible with upholding the interests and concerns of domestic populations, even in a post September 11 environment. We are committed, as I will elaborate later, to finding ways to doing just that. Where we do, though, draw a firm line is with those states who, disillusioned about their capacity to manage contemporary population movements, have deemed the 1951 Convention and its 1967 Protocol outdated and unworkable as a complicating factor in hindering a state's capacity to deal resolutely with unwanted illegal migration.

UNHCR's response has been clear and unqualified. Rather than holding the 1951 Convention accountable for any limits in relation to problems it was never envisaged to deal with, the challenge, for us, has been to clarify its place in the modern world, in particular as regards the asylum-migration nexus. It does have a place within the larger body of principles affecting the treatment of migrants, broadly defined, but as a rights protection instrument, to safeguard the security of a particularly vulnerable group of non-citizens. It is not, and was never intended to be, a migration control tool. This fact does not lessen the importance of the 1951 Convention, or render it peripheral. To the contrary, given the mixed population movements of today, without the Convention the likelihood is that the needs of asylum-seekers and refugees will become ever more marginal, even totally subsumed to overriding considerations of state and local interests, with disastrous consequences for the persons concerned.

Let me digress a bit here by turning to a recent newspaper article to illustrate this point. In an article published in the British newspaper, The Times, on 29 June, a well-respected journalist provocatively suggested the 1951 Convention should be scrapped. The background to the article was clearly British concerns (of the people and of the Government) about the rising number of asylum seekers coming to Britain, the degree of abuse of the asylum system and a somewhat inchoate sense of the injustice of Britain being too frequently singled out by "would-be migrants" as the soft option country of choice. So the journalist, Parris, concludes that the problem is the Convention and it is time it went. One could summarise his reasoning, perhaps a bit simplistically, but actually not overly so, in the following terms: firstly, you cannot help everyone, so that the only equitable alternative becomes to help no one; and secondly, if you lay down criteria for those you will help (read here the Convention), some people will falsely claim that they meet these criteria and, frankly, it is too much hassle and expense to try and sort out who is genuine and who is not, so better just send them all back, even though many will be tortured and killed.

This is a very self-serving analysis, morally and legally incompatible with the human rights basis of the protection regime. If rights are the starting point of an approach to the asylum problem today, the Parris assertions are untenable. However, if his analysis had not been so dismissive of the human rights consequences of turning people away, if indeed it had acknowledged that they were heinous and had to be avoided, but nevertheless if it had stood by the position that the responsibilities were not Britain's to bear, given overriding national interests of various sorts and the lack of a connection between Britain and the root problems, then it might have been less easy to reject the article.

This brings me to the responsibilities part of my analysis. I have suggested to this point that the Convention is a rights protection document and remains - and has to - the basic framework for refugee protection. This being said, I have also acknowledged that there are difficulties and costs for states in extending asylum and that there is a need to build upon and buttress this framework in today's modern context. Why?

If the Convention is clear in terms of rights, it is close to silent about whose responsibility it actually is to protect them in a given case. When is a state party to the Convention required to provide for the rights to which an asylum seeker or refugee is entitled; when is another state the more appropriate provider; what are the criteria for determining when responsibilities are engaged and when they can be refused? The answers to these questions are only partially to be found in the instruments which we have. Of course a proper interpretation of the Convention, consistent with its objects and purposes, means that there has to be a provider of protection. A state is clearly in violation of its Convention obligations if, by its own actions, a situation is created whereby protection is not available. But there is a rights versus responsibilities balancing dilemma. The key to ensuring protection for those who genuinely need it lies ever more urgently in the development of approaches which will achieve that balance, which will better apportion responsibilities and, ultimately, which will allow states to identify both to whom they owe responsibilities, and to whom they do not.

The Global Consultations and the Agenda for Protection

As some of you no doubt are aware, at the initiative of UNHCR, a process of Global Consultations on the International Protection has recently been completed. This process was in part a response to criticism of the Convention, but perhaps more importantly to the bigger challenges confronting refugee protection - how to protect refugees better in mass influx situations, how to make asylum systems work better, how to find solutions particularly in the protracted situations, how to share the responsibilities more equitably, how to address the waning quality of asylum. The goals of the process included, to shore up support for the existing international framework for protection, as well as to explore the scope for enhancing protection through new approaches which respect both the rights at stake and the concerns and constraints of States and other actors.

This process was ambitious, and included three parallel tracks of deliberations, one of which culminated in the afore-mentioned Ministerial Meeting of State Parties. For a year and a half, discussions continued between UNHCR, governments and other key partners on new approaches, while the scope and interpretation of the "old" tools were better clarified, through a series of roundtables involving academics, governments, NGOs, and other experts in refugee law.

To crystallize the concrete outcomes of this process, a document has been developed encompassing the conclusions and recommendations of the various meetings. This Agenda for Protection is a strategic policy document, which sets as the central goals:

• Strengthened implementation of the 1951 Convention and the 1967 Protocol

• Protecting refugees within broader migration movements

• Sharing of burdens and responsibilities more equitably and building of capacities to receive and protect refugees

• Addressing security-related concerns more effectively

• Redoubling the search for durable solutions

• Meeting the protection needs of refugee women and refugee children

It is intended to serve as a guide to concrete action by UNHCR, but also, governments, NGOs and other partners. The drafters have made every effort to ensure that the Agenda reaches beyond a paper list of commendable ideas and principles. Thus, under each of its goals, concrete objectives and related activities have been identified. The Agenda is not about preserving the status quo, but is a forward-looking document intended to strengthen refugee protection over the years ahead.

Current challenges, dilemmas and myths

Running through all of the Global Consultations discussions, and indeed through the Agenda itself, is the responsibilities/rights dilemma. How might this dilemma translate into a "real life" situation.

Let us take the typical case of a woman who is outside her home country, fears the serious consequences for her physical security should she return and arrives in a foreign country, more than likely in a "irregular" manner. She seeks and has the right to be allowed to present her claim for protection and have it processed. Her mode of travel, the legality of her entry, or even the situation of other groups of migrants that may have arrived alongside with her, should not limit her right in this regard, even if it goes to the eventual well foundedness of her claim, should this be found to be warranted. Not only does she most likely need support after what may have been a traumatic experience creating the fear of ongoing persecution, compounded by the dangers of her flight, it is also her right to have access to effective protection mechanisms. But does the state to which she presents her claim for protection have to accept it? What if she passed through other countries on the way? What if she does not even transit enroute, but there is another country to which, while she personally has no links, persons of her nationality are regularly admitted, for example on the basis of a Treaty of Peace and Friendship? What if a part of her own country seems to be at peace? Or what, indeed, is the situation if she was trafficked? The likelihood today is that all of these considerations may well create insurmountable obstacles for her to overcome to access the protection she may well need. She may face bureaucratic obstacles, she may be refused entry altogether, or she may be faced with an asylum reception system dominated by political and public distrust. Particularly if she arrives outside of a regular visa-entry regime, she may be labelled as a "queue jumper", "bogus asylum seeker " or as a woman with links to illegal human trafficking, classified as a prostitute, or at best a victim of a criminal migration racket, and therefore, automatically not a refugee in need of access to any asylum procedures.

Let us examine this last point in a little more detail. It allows me to put before you a relatively new dilemma that UNHCR is increasingly having to address. It is, if you will, a by-product of the host of problems that arise at the interface between asylum and migration. Women are increasingly the victims of sex trafficking, with significant gains to be had alike for the traffickers as for those who assist them, or turn a blind eye to them. In countries where mafia have a stronghold, where state policing systems are weak and where corruption is anyway endemic, the problem is quite widespread. Women are vulnerable not only to be trafficked once, but again if they manage to return home. They are also seriously endangered, as potential witnesses against organised crime. They are abused, mistreated and enslaved, often without any prior knowledge. This is surely persecution of quite serious proportions, leading a number of advocates to plead for protection to some at least through the asylum system.

So in our example, we have a woman who may well be a refugee, with the right to have her situation properly adjudicated and protection made available to her. But we have, too, a number of complicating factors, revolving around notions of secondary movement, safe country, internal flight alternative, even now "external flight alternative", as well as the imperative of combatting smuggling and trafficking, which more than likely will lead to the woman not being able to access any protection mechanisms, absent a system for designating which is the responsible state in such circumstances.

Clearly, UNHCR's mandate responsibilities for refugees and other persons of concern does not extend to migrants generally. Meanwhile, it is equally clear that there are individuals within the broader mixed migratory flows, namely asylum-seekers and refugees, perhaps like the woman in our example, who are in dire need and have the right to obtain a status that will offer them protection. UNHCR's role here is to clearly and unequivocally uphold the standards of protection for those who fall within the "protection gap" between international refugee law and state practice. Confidence in the asylum system certainly needs to be restored, not least through devising approaches which make sure that persons in need of protection, as well as the State responsible for it, both are recognized with predictability and reliability, and that persons not so in need are identified and returned.

Priorities - The way forward

Through the Global Consultations Process, we have sought to explore possibilities and limitations, from the perspective both of the providers and of the beneficiaries of international protection. Certain baselines and better practices for making asylum systems work more justly and efficiently have been identified. UNHCR believes that the process has achieved the objective of firming up political will to do protection more consistently and predictably. We will now move forward on the momentum of the Global Consultations, particularly in the area of responsibility sharing and balancing the burdens. However, implementation of activities identified therein will require a continued commitment also by UNHCR's partners, most important among them being States, to explore some new and non-traditional approaches to sharing responsibilities and solutions.

We are looking, for example, at the "irregular movement" problem and are, in this context, examining how to strengthen the hosting capacity of first asylum countries, while creating incentives for the so-called "secondary movers" to return to them, or even not to leave in the first place. Such incentives might include, joint screening arrangements and/or resettlement pools in first asylum countries, contributed to by, and with the political and financial backing of, chosen destination countries in Western Europe and elsewhere. We are also examining how we can play a more substantive role, both in countries of first asylum and even in destination countries, to facilitate return, for example in the context of screening arrangements at points of entry. UNHCR's participation in the airport procedures in Switzerland and Austria are two positive models we are now exploring further to see how they would apply in other countries. Another possible option might be an agreement on burden and responsibility sharing in relation to the processing of asylum applications for a particular region, or even for a particular caseload.

Conclusion

In conclusion, let me now briefly recap my key message.

Presenting the refugee issue from a rights perspective is the correct place to start. However, this approach provides only a partial view and thus allows for only partial answers. In order properly to present the refugee problems of today, any analysis must also tackle them from the perspective of responsibilities. The difficulties we face in securing adequate protection, and the difficulties states face, as the main providers of protection, stem largely, in my view, from the fact that, while refugee rights are rather well developed, articulation of how these translate into responsibilities is inadequate. This disconnect between rights and responsibilities in a globalised world of large scale migration of various sorts is, perhaps, THE CHALLENGE confronting the viability of asylum today. While, with conviction, we hold the opinion that the 1951 Convention remains solid as the central legal structure to ensure protection for asylum-seekers and refugees, UNHCR is also committed to working more actively on complementary, solution-oriented frameworks. Refugee protection and the work of UNHCR are being challenged on different fronts. Many asylum states are adopting increasingly restrictive practices, and there is a growing reluctance to provide adequate financial and political support for UNHCR's protection activities. At the same time, UNHCR also recognizes costs that refugees and asylum-seekers place on asylum states. In order to overcome the challenges to refugee protection, it is important to seek convergence or accommodation between the legitimate interests of states and their international humanitarian responsibilities. UNHCR was not set up to function as an obstacle, or only always as a brake, but rather to be an integral contributor to the overall solution.

Thank you for your attention.