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Geneva, 12 December 2001


Statement by Mary Robinson,

United Nations High Commissioner
for Human Rights

to the Ministerial Meeting of State Parties to the

1951 Convention and /or 1967 Protocol relating

to the status of Refugees






Mr President,
Madame President,
High Commissioner,
Your Excellencies,
Ladies and Gentlemen,

It is an honour to speak to you at the close of your Plenary Session. I was very glad this morning to have the opportunity to listen to the introductory statements launching the Conference. All of us were moved by the statement by Her Excellency the President of Latvia, who reminded us that at the heart of our concern lies the individual and of the need for all of us to reach out a helping hand to those forced to flee their homes and their country.

This 50th Anniversary provides a crucial opportunity for stocktaking. It has come at a critical time for refugees and asylum seekers world wide - sadly the theme of 'respect' has not been honoured to the extent it should, and the challenge now is to re-invigorate the international commitment to protection.

All that I heard this morning served to convince me further that we are coming to recognise the common aims and principles that link the fields of refugee protection, human rights protection and protection in times of conflict - international humanitarian law.


The achievements of UNHCR and the 1951 Convention

The achievements of the Convention and UNHCR have been enormous and should be recognised. In the 1951 Convention, the international community enshrined the protection principle and the principle of non-refoulement and created for the first time a functioning system to tackle the protection needs of those who flee persecution. What was designed as a measure to deal with the refugee crisis arising from World War II has proved enduring. As High Commissioner Ruud Lubbers noted this morning, the 1951 Convention, together with its 1967 Protocol, has become in effect a universal charter on refugee law.

In the shadow of the appalling acts of September 11 and the humanitarian crisis in Afghanistan, UNHCR stands yet again, at the centre of world affairs.

Flexibility

The Convention has proved its flexibility since its adoption in 1951 with only one revision of geographic and time limitations by protocol in 1967. It continues to map the contours of protection needs in 2001. But we have learned that the Convention faces new challenges. It has proved successful in adapting to earlier challenges. One example is that of gender-based persecution. Gender is not included in the Convention, indeed it was not considered at all in the course of drafting. Since that time, however, the mainstreaming of women's rights has gathered pace. This is an area in which refugee law was ahead of most disciplines.

Path-breaking

The Convention was path-breaking when it was adopted 50 years ago. It fact it represented the earliest implementation of the Universal Declaration of Human Rights, whose anniversary we marked two days ago on Human Rights Day. The Convention was in a real sense one of the first human rights treaties.

In addition to the principle of non-refoulement, the Convention included a non-discrimination clause. It guaranteed basic economic and social rights, for example education, social security and public assistance, employment on the same basis as other non-nationals. It also recognised civil rights including access to the courts and freedom of religion.

The Refugee Convention - although not endowed with enforcement machinery - was the first treaty to have built-in a formal link to an international supervisory body - UNHCR. We can perhaps see here the seeds of the supervision systems established under human rights treaties in later years.

Contribution to human rights law and international law

The 1951 Convention has made a major contribution to general international law and human rights law principles. Provisions such as the definition of the term ‘refugee’ and the guarantee against forcible return to territories where persecution is feared (non-refoulement) have become principles of public international law. The San Remo Declaration of 8 September 2001 (under the auspices of the International Institute for Humanitarian Law) is the latest in a long line of authorities confirming that non-refoulement has the status of customary international law.

Protection against refoulement has also come to be recognised in human rights law. The obligation to protect individuals against torture and other severe ill-treatment has developed into a prohibition on States removing persons to a territory in which a real risk of such ill-treatment exists. This principle - recognised by the European Court of Human Rights and the Human Rights Committee - was later explicitly incorporated into the UN Convention against Torture.

The mutual influence of human rights jurisprudence and refugee law is a welcome recognition of the interlocking purposes of human rights and refugee protection. UNHCR itself has recognised this relationship. In its annual “Note on International Protection” this year, UNHCR speaks of the 1951 Convention as being rooted “quite directly in the broader framework of human rights instruments of which it is an integral part, albeit with a very particular focus”.

Many challenges remain for those who seek to extend protection. As Mr. Lubbers said this morning, those challenges should be jointly addressed through effective partnerships. My Office is committed to addressing how OHCHR can be of service to all parts of the humanitarian community in the work of protection in the field.

Threats to protection

The appalling acts of September 11 will have profound implications for the work of the United Nations, including both my Office and UNHCR. Of first concern must be the humanitarian crisis in Afghanistan and the surrounding countries with the associated massive displacement of men, women and children.

It is against this background - what UNHCR has termed the world's worst refugee emergency - that some have voiced their doubts as to the sustainability of the refugee system. I share the concern at the possibility of reduction in protection in the aftermath of 11 September. Even before the crimes of that day, refugees and asylum seekers had been viewed in some quarters with ever-increasing suspicion. Now, the fear is great that simple assertions of 'national security' will operate to deprive many needy persons of protection.

While claims are made that the Convention must come second to national security, a few points should be recalled. First, the Refugee Convention was not adopted at a time of starry-eyed idealism. As Professor Goodwin-Gill pointed out at the joint OHCHR- UNHCR seminar on refugees and migrants for Human Rights Day, - the drafters of the 1951 Convention framed its terms at a time of great international insecurity. The Berlin blockade was in progress, the Cold War was entering into being. In such a context, the Convention was not overly generous to refugees to the detriment of State interests - the realism and careful balances all throughout its text point to its continuing relevance today, just as it addressed the concerns of an insecure world in 1951.

In recent years some European States, in questioning the Convention, have expressed fears of being 'swamped' by asylum seekers and have used this as a ground for restriction of access to their territories and asylum systems. But the stark fact is that Iran and Pakistan host twice as many refugees as all the nations of western Europe combined, and Pakistan is not even a party to the Convention. These figures highlight the vital importance of addressing urgently the issue of burden-sharing.

Some States now seek to override or ignore the provisions of the Refugee Convention We should ask: have they fully considered the possibility that in so doing they may breaching their domestic law? Constitutional questions, for example, have been raised in the courts of a number of countries in recent years over measures mandating restriction of fundamental rights of refugees - either through deportation, or through detention where such deportation may not be possible to carry out. The absolute necessity for strong procedural protections and strict judicial scrutiny in such cases was emphasised by the courts.

Conclusion

As the 50th year of the Refugee Convention is celebrated, let us put the emphasis back where it should always be - on protection. It is this basic aim and principle that provides the link between international human rights law and refugee law, and also international humanitarian law. Closer integration of these fields around the concept of protection offers the best possibility of filling the gaps - what refugee lawyers term the 'grey areas' - of protection.

The Refugee Convention remains vital and indispensable. Let me leave you with the words of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held earlier this year in Durban, South Africa. I can think of no more fitting conclusion for my message, for this occasion, or for the challenges facing us today than to recall the solemn promise by States in the World Conference Declaration that:

"We affirm our commitment to respect and implement humanitarian obligations relating to the protection of refugees, asylum-seekers, returnees and internally displaced persons, and note in this regard the importance of international solidarity, burden-sharing and international cooperation to share responsibility for the protection of refugees, reaffirming that the 1951 Convention relating to the Status of Refugees and its 1967 Protocol remain the foundation of the international refugee regime and recognizing the importance of their full application by States parties."


Thank you.



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