"Rule of Law and Protection of Refugees" Remarks at the Bar Leaders' Briefing, Union Internationale des Avocats

Madam President,

Ladies and Gentlemen,

It is with great pleasure that I join you today to discuss the theme of the rule of law and refugee protection, as I believe that lawyers and the legal community more broadly have a critical role to play as agents and engines of social change in this field.  In the context of refugee protection, your thoughtful and continued advocacy has a significant and positive impact on the lives of some of the most vulnerable people in the world.  Through your engagement, refugees are able to voice their plight, secure protection and support, and find their way towards lives of greater stability.  Your efforts heighten the awareness and empathy of the communities that host them.  And your interventions ensure that the legal systems in which these debates are played out are strengthened as bulwarks against contemporary threats to the rule of law.

We are living in a time when the world is beset by conflict and violence, the rise of populism and demagoguery, and a breakdown in the social fabric and law and order – phenomena that have driven millions of people to flee from their homes, most inside their countries, but many also across borders to become refugees.  UNHCR’s Mid-Year Trends report demonstrates how the number of people displaced has continued to rise,[1] and attests to the continuation and worsening of conflicts around the world.  As of the first half of 2016, there were 65.3 million displaced persons.  The total number of refugees stood at 21.3 million,[2] with nearly 3.2 million newly displaced, primarily in the Syrian Arab Republic where more than half of the entire population is now displaced, but also in other countries affected by conflict, such as Nigeria, Yemen, and South Sudan.  People are often displaced internally, frequently multiple times, and eventually are compelled to seek safety outside – most often in countries in their immediate region, such as sub-Saharan Africa, the Middle East, Latin America, Turkey, and parts of Asia.  In addition, some 10 million people are estimated to be stateless.

In the face of these numbers, it is imperative that we broaden our search for solutions that enable refugees, internally displaced people [IDPs], and stateless persons to lead productive and meaningful lives and participate as full members of their communities wherever they are located.  UNHCR has traditionally pursued the solutions of voluntary repatriation, local integration, and resettlement, but these have benefited only a fortunate few.  Only 123,000 refugees were able to return to their home countries in the first half of 2016, many of whom were again displaced internally.  While there have been some notable boosts in resettlement numbers, the quotas provide for less than one per cent of refugees to be resettled.   Hence, the overall prospects for fully realizing solutions remain limited to a small proportion of the refugee population, and most continue to live in situations of protracted exile.  It is necessary that we broaden the search for solutions to focus on creating the conditions needed to achieve solutions progressively over time, for example through inclusion of refugees in national systems and services and providing opportunities for livelihoods.  This also requires more focused attention on the needs of communities who host them. 

The ultimate solution, of course, is to address and ameliorate the drivers of displacement – from conflict and instability, to weak governance and the breakdown in the rule of law.  Displacement is often an early warning sign of the failure of legal institutions to ensure the human rights protection of individuals within a State’s jurisdiction.  The inability of a State to guarantee human rights can compel people to flee.  It speaks to our collective interest in ensuring human rights compliance at the national level, and it is here that lawyers and bar associations have a particularly important responsibility and central role to play.

Bar associations and lawyers are especially critical to functioning governmental systems that respect the rule of law.  Lawyers and courts play a key role in the administration of justice and the protection and promotion of human rights.  Lawyers are instrumental to securing strong and independent judicial decisions that articulate State obligations and interpret key legal principles in accordance with international law.  The importance that the international community places on the independence of the judiciary is evidenced in numerous international and regional treaties and international statements.  The UN Basic Principles on the Independence of the Judiciary, for example, states that “[t]he independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country.  It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary”.

An independent judiciary is essential to upholding the rule of law in times of crisis, providing the voice of reason in a sea of emotional public debate so often rooted in fear and xenophobia.  It ensures both the interests of States and respect for fundamental rights of people fleeing conflict, which go hand-in-hand.  It is in States’ interests that laws are adhered to and upheld – including treaty obligations undertaken by States.  The danger lies in unilateral actions, undertaken outside the framework of law, which disregard the interests of other States in managing asylum and migration-related challenges, as well as the rights of individuals.  In the process, they create gaps in both protection and security, as well as inconsistencies in response.

With respect to refugees, the independence of the judiciary is fundamental to ensuring that interpretations of law and policy are consistent with the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.  In recent months, some have questioned the ongoing relevance and suitability of the 1951 Convention for today’s refugee situations.  Yet, we have seen over the years that the Convention is entirely adaptable to modern challenges.  Indeed, decisions of courts in many cases have highlighted the ability of the refugee definition to encapsulate notions of persecution that were not prevalent or widely acknowledged at the time of the Convention’s drafting.  For example, the definition has been successfully relied upon to address questions of gender and child-specific forms of persecution; sexual orientation and gender identity; gang violence; and widespread human rights violations perpetrated by non-state criminal elements.

In this context, the courts perform a crucial role. Interpretations that depart from the fundamental principles enshrined in the Convention require courts to step in and recall the need for consistency with international standards.  It is through your work as lawyers and judges, that these international principles are given expression, relevance, and effect in practice for the lives of refugees.  I would like to set out today some of our thinking on what this work entails. 

First, of course, is the role of lawyers and bar associations in judicial engagement.  Judicial engagement is a tool for ensuring that legal interpretation is both consistent with international law, including UNHCR positions as the supervisory body, and harmonized across jurisdictions.  We have seen how necessary judicial engagement is when looking at the wide differences in outcomes for cases involving flight from conflict and violence, subsidiary protection, and refugee recognition.  Recent statistics in Europe [Eurostat 2016] show, for example, that almost one in five appeals was successful [17 per cent] and led to the granting of protection.  Individuals in similar circumstances are not treated the same in every jurisdiction.  Differential treatment of the same kinds of cases can destabilize legal systems, lower public confidence, and encourage onward movement.  It also points to the crucial importance of having a right to an effective remedy.

Consistency in judicial decision-making, both across jurisdictions and at the highest level, is a source of strength for legal systems and the institutionalization of the rule of law.  It helps counter political objections to judicial pronouncements on the grounds that they represent the views of isolated individual judges.  It enables lines of legal reasoning to be developed and elaborated in different cases, so that their scope and application are clear.  It does not require judges to follow previous rulings blindly, but affords them the flexibility needed to adapt interpretations to address concrete situations, while upholding key principles.

In the refugee field, international law is of course the central reference point for promoting and ensuring consistency across different jurisdictions.  The 1951 Convention has inspired the development of refugee law frameworks at national and regional levels around the world.  In order to enhance the competence, independence, and impartiality of the judiciary and legal process in refugee cases, all legal actors – from judiciaries, to States, legal professions, civil society, and international and regional agencies – need to ensure training of judges and lawyers in international refugee law.  This is something that the UIA already does regularly with its seminars, training sessions, and annual conferences.  UNHCR has also worked with bar associations to train lawyers as well as first-level decision-makers.

Judicial engagement takes many forms from individual representation to strategic litigation and legislative advocacy.  These tools are key to ensuring judicial decisions and interpretations are consistent with the obligations of States under international refugee and human rights law, and that refugees, IDPs, and stateless persons are fully and properly protected.  Strategic litigation can be particularly effective, whether through representing individuals or groups, or intervening through amicus curiae, in cases presenting a contentious or undecided legal issue.  This is an important means of securing a more definitive, progressive, and consistent interpretation and application of the law.

There are many excellent examples of how lawyers, either in cooperation with UNHCR or independently, have helped to move the field of refugee protection closer to this goal.  We have witnessed a rise in legal associations acting as intervenors in recent years.   They have used strategic litigation to challenge systemic deficiencies in refugee or migrant access to rights, including socio-economic rights, and in status determination procedures.  The Canadian Bar Association and the Canadian Association of Refugee Lawyers, for example, have sought to intervene in cases related to refugees before the Supreme Court.  These kinds of interventions can be extremely effective and influential. 

By way of another example, the Malaysian Bar Association has taken the lead in litigating the issue of detention in Malaysia.  More generally, the detention of asylum-seekers and refugees has become commonplace in many countries, with persons being detained for months and, in some cases, years.  This has serious lasting effects on individuals and families and is the impetus for UNHCR’s 'Global Strategy - Beyond Detention 2014-2019', which aims to support governments to make the detention of asylum-seekers an exceptional, rather than routine, practice. 

Bar Associations like the UIA can also help us by challenging these practices, either through test case litigation, individual representation, or monitoring places of detention to ensure that they comply with human rights standards.  We particularly commend the UIA for developing the ‘basic principles on the status of refugees’.  This proactive initiative has the potential to improve significantly respect for rights and practice on the ground.

Acting within its supervisory responsibility to ensure the proper application of the 1951 Convention, UNHCR, often in cooperation with lawyers around the world, also pursues judicial engagement strategies.  Last year, for instance, UNHCR filed 21 amicus curiae or court interventions on important points of law and doctrine in 15 jurisdictions, ranging from Europe, to North America, Latin America, and Africa, and including regional courts such as the European Court of Human Rights and the Inter-American Commission on Human Rights, as well as superior national courts, such as the US Supreme Court and the UK Supreme Court. 

The success of such interventions would not be possible, however, without the provision of legal aid to refugees, asylum-seekers, IDPs, and stateless persons.  Legal aid most importantly provides confidential, competent, independent legal advice and representation, and improves the chances of a positive outcome.  It helps to ensure that individuals are fully informed about and able to access legal processes and understand their rights, including their right to qualified culturally sensitive interpretation and translation.  Legal aid also provides a mechanism for identifying legal issues or gaps that could be addressed through strategic litigation. 

Legal aid is therefore essential and needs to be made available free-of-charge for those who cannot afford it.  When the State fails to provide legal aid, oftentimes we have witnessed legal associations and individual lawyers generously trying to fill that gap by providing pro bono services, as we saw recently with the UK Immigration Lawyers Association providing pro bono legal advice to asylum-seekers in Greece.   

Legal aid is also often key to ensuring that persons living in areas affected by conflict and violence are able to access the documentation and administrative procedures necessary not only for them to carry on with their daily lives and access services to the extent possible, but also to move on when their lives are at risk.  The legal aid programme in Syria, for example, has been critical in this regard.  A vast network of more than 74 community centres, 120 lawyers, two legal clinics, and 1,770 volunteers across the country have been working to raise awareness and ensure that IDPs and other civilians affected by conflict are able to register and document important civil status events, such as birth registration and civil documentation booklets.  The community centres provide integrated protection services and are supported by mobile teams providing legal aid in collective shelters and remote or hard-to-reach locations with a high number of IDPs.  Being able to access civil procedures in a time of conflict is also key to preventing the risk of statelessness.

Judicial engagement further helps to preserve the integrity of the asylum system in a number of ways through: (i) advocacy for recognition and respect for the rights of refugees; (ii) securing other outcomes, based on respect for human rights, for persons not in need of international protection; and (iii) ensuring refugee protection and national security, through the prosecution of individuals involved in terrorist crimes, and ensuring that victims of such crimes have equal access to justice, as well as procedures for compensation or reparation for human rights violations. 

Second, lawyers and bar associations are important advocates for upholding the rule of law and ensuring that its application is consistent with international obligations.  International law requires progressive thinking, anticipation, interpretation, and development – finely honed skills that lawyers bring to the advocacy table.  Lawyers can help craft a narrative informed by values and principles of humanity and the promotion and preservation of human dignity.  This is needed urgently now to guide society in meeting the challenges of displacement.  Lawyers are well positioned to participate in political debates on legislative initiatives concerning the status of refugees and asylum-seekers or the regulations on asylum, and in so doing, they act as the guardians of international standards.

As advocates, lawyers and bar associations also have a critical role to play in promoting ratification of and accession to the international instruments for the protection of refugees and stateless persons.  The principles enshrined in these instruments need to be implemented in strong, progressive national laws, including constitutions and bills of rights that are the legal bedrocks of democratic societies.  This brings to mind a decision by the Kenyan Court of Appeal [17 February 2017], which stated that courts must “aim at promoting through their interpretations of the Bill of Rights the ethos and credo, the values and principles that underlie and therefore mark us out as an open and democratic society whose foundation and basis is human dignity, equality, equity and freedom.”[3]  

Lawyers, through their engagement with and representation of the individuals most at risk, are often working on the front lines and are amongst the first – in addition to these affected individuals themselves – to detect gaps in systems, laws, and policies.  It is here that I would like not only to commend what so many of you are already doing to forward the agenda of ensuring protections for refugees, but also invite you to think ahead to the challenges that loom on the horizon. 

In this respect, you can be instrumental in shaping the questions and formulating potential solutions.  Whether this be in relation to displacement as a result of climate change, maritime search and rescue, discrimination in nationality laws, or legal residence and access to basic rights for stateless persons, you can engage as advocates in helping to determine what new legislation, governance, and rule of law structures are required, and what fundamental principles need to be guaranteed.  Now is an opportune moment for all of us to anticipate and innovate, in the project of ensuring that those most in need of just outcomes from our legal and political institutions can count upon their steadfast protection.

[1] UNHCR Mid-Year Trends, 2016

[2] Including 16.1 million refugees of concern to UNHCR and 5.2 million Palestinian refugees registered by UNRWA.

[3] See: http://www.refworld.org/cases,KEN_CA,58ad70544.html