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Center for International Human Rights John Jay College of Criminal Justice City University of New York Protection Gaps & Responses: Challenges & Opportunities April 27, 2011 Fernando Botero Courtesy, Marlborough
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Center for International Human Rights John Jay College of Criminal Justice City University of New York Protection Gaps & Responses: Challenges & Opportunities April 27, 2011 Fernando Botero Courtesy, Marlborough Gallery, NYC 2 Protection Gaps and Responses: Challenges and Opportunities Forced displacement, statelessness, and mixed migratory movements remain prominent global issues in terms of their magnitude and complexities. Conflict, violence, and persecution continue to cause displacement. At the same time, a variety of social, economic, political, and environmental factors, such as population growth, urbanization, climate change, water scarcity, and food and energy insecurity are exacerbating conflict and combining in other ways that oblige people to flee their countries. While the 1951 Refugee Convention, which is central to the protection regime, has proved flexible enough to accommodate certain new forms of persecution, the complexity of the current factors affecting cross-border displacement is resulting in gaps in the response to current protection challenges. As the Office of the United Nations High Commissioner for Refugees has noted, gaps in international protection occur primarily in three ways: * through insufficient accessions to relevant instruments; * through inadequate implementation of existing treaties; and * through gaps in the existing international protection framework. Statelessness is often referred to as the forgotten problem, despite the fact that citizenship is necessary for the full realization of one s human rights. One of the key concerns is the limited accession to the 1961 Convention on the Reduction of Statelessness and related international treaties. However, there are also obstacles to the acquisition of nationality and even the size of the statelessness problem is not comprehensively mapped. New responses are urgently needed to address the gaps and obstacles in the protection of the displaced and stateless. This publication hopes to provide some background to key aspects of the discussion surrounding gaps in the protection framework. In particular, it will offer some remarks on the relevant international legal instruments, address the prioritization of national security considerations over the protective responsibilities of member states (as exemplified by the primacy attached to the fight against terrorism over asylum and refugee protection), explore the emerging issue of environmental change and displacement, and assess the increasing use of Temporary Protected Status (TPS) as a mechanism to fill gaps in the protection regime. The International Legal Framework Faced with the problem of displaced people after World War II, a special UN conference adopted on July 28, 1951, a Convention relating to the status of Refugees. 1 The Convention was the first international agreement covering almost all aspects of refugee life, such as defining who is a refugee, the protection and social rights she should receive, and the 1 UNHCR. Convention and Protocol: Relating to the Status of Refugees. Switzerland: Communications and Public Service Information, 2010. 3 obligations that the host government would have towards refugees. 2 The problem of refugees is huge. At the end of 2009, there were 43.3 million forcibly displaced people worldwide. Of these, 15.2 million were refugees; million are under the responsibility of UNHCR, while the remaining 4.8 million Palestinian refugees are under the mandate of UNRWA. The figure of 43.3 million also includes 983,000 asylum seekers and 27.1 million internally displaced people (IDPs). 4 While UNHCR s primary purpose is to safeguard the rights and well-being of refugees and, in this context, it provides relief and assistance to millions of displaced persons, its ultimate goal is to provide durable solutions; namely, voluntary repatriation, local integration, or resettlement to a third country, in situations where it is impossible for a person to go back to her/his country of origin, or remain in the host country. 5 As of April 1, 2011, 144 states are parties to the Convention Relating to the Status of Refugees. 6 Many member states have made reservations to the convention, which is permitted under article 42. In total, there are about forty countries that have standing reservations. 7 Existing reservations primarily target articles 17, 24, and 26: article 17 concerns wage earnings and employment, article 24 outlines labor registration and social security, and article 26 is about freedom of movement. Each of these articles had reservations attached by approximately one-fourth or one-third of the countries that submitted reservations when signing the convention. These articles relate to two critical issue areas: resources to be devoted to or benefits that could accrue to refugees and national security considerations. While the issue of resources and benefits has been a longstanding concern, it is the latter issue which has become the dominant one in recent refugee crises for several reasons; prominent among them are: (1) the militarization of refugee camps, and (2) concerns over terrorist mobility. In some cases, refugee crises have contributed to the spread of conflict across borders, especially in situations where refugee camps have functioned as bases for combatants to get food, medicine, and new recruits. This has occurred in several cases; some of the best known examples include the Rwandan refugee camps in Zaire (now DRC), and the Burundian refugee camps in Tanzania. 8 2 The 1951 Refugee Convention. (accessed April 13, 2011). 3 UNHCR, The UN Refugee Agency (on file with the Center for International Human Rights). 4 Ibid. 5 Ibid. 6 States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol. UNHCR, United Nations High Commissioner for Refugees, 2011: states are parties to both the Convention and the 1967 Protocol. 7 Treaty Collection. Convention Relating to the Status of Refugees United Nations. (accessed April 12, 2011). The number was larger before many countries began withdrawing their reservations. For example, the following countries have withdrawn their reservations: Australia, Denmark, Finland, Greece, Italy, Norway, Portugal, Sweden, and Switzerland. 8 Sarah Kenyon Lischer. Dangerous Sanctuaries: Refugee Camps, Civil War, And the Dilemmas of Humanitarian Aid. New York: Cornell University Press, 2005: 4 In addition, freedom of movement might be controlled due to increased consideration and awareness of terrorist mobility during the last decade. 9 Countries, which traditionally have always hosted large numbers of refugees, now adopt new and more restrictive policies. 10 This problem is compounded by the lack of a universally accepted definition of terrorism, which allows countries to adopt restrictive policies on the basis of their own very broadly worded definitions of terrorism. Many refugees might be labeled as terrorists, which limits their movement and can be used to remove them from the country of intended asylum, thus rendering them stateless people (more on this later) Convention Relating to the Status of Refugees Countries which made reservations, as of April 2011 Article 17: Wage-Earning Employment, Angola, Austria, Botswana, Chile, The Contracting States shall accord to refugees Denmark, Ethiopia, Honduras, Iran, lawfully staying in their territory the most favorable Ireland, Jamaica, Latvia, Malawi, Mexico, treatment... shall give sympathetic consideration to Mozambique, Moldova, Norway, Papua assimilating the rights of all refugees with regard to New Guinea, Sierra-Leone, Zambia, wage-earning employment to those of nationals, and Zimbabwe. 13 in particular of those refugees who have entered their territory pursuant to programs of labor recruitment or under immigration schemes Article 24: Labor Legislation and Social Security, The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters; remuneration, social security, maintenance of acquired rights, public funds, etc Article 26: Freedom of Movement, Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to aliens generally in the same circumstances. 16 Canada, Egypt, Estonia, Honduras, Iran, Jamaica, Latvia, Malawi, Monaco, Moldova, New Zealand, Poland, Timor- Leste, United Kingdom of Great Britain and Northern Ireland, Zimbabwe. 15 Angola, Botswana, Honduras, Iran, Latvia, Malawi, Mexico, Mozambique, Namibia, Netherlands, Papa New Guinea, Rwanda, Sudan, Zambia, Zimbabwe António Guterres Dialogue on Protection Gaps and Responses. Speech of High Commissioner for Refugees António Guterres, Palais des Nations, Geneva: UN High Commissioner for Refugees, 2010: Ibid. 11 Ibid. 12 Convention Relating to the Status of Refugees, (accessed April 22, 2011); (hereinafter Convention Relating to the Status of Refugees ) 13 United Nations Treaty Convention. Convention Relating to the Status of Refugees. lang=en (accessed April 22, 2011); (hereinafter referred to as Convention Relating to the Status of Refugees ). 14 Convention Relating to the Status of Refugees: supra note Convention Relating to the Status of Refugees: supra note Convention Relating to the Status of Refugees: supra note Convention Relating to the Status of Refugees: supra note 13. 5 Another major problem relates to statelessness, which is addressed in two convections; the Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961). 18 There are an estimated 12 million stateless people worldwide; of them, 6.6 million are registered by UNHCR. 19 States are the entities responsible for granting nationality and are the ones who need to be at the forefront of efforts to reduce it. As of April 20, 2011, only thirty-seven states had ratified the 1961 Convention, and many of them have attached declarations; only two have attached reservations. 20 The two countries which made them, Niger and Tunisia, have attached reservations to article 11, concerning the establishment of a body responsible for assisting in the presentation of claims to obtain nationality to the appropriate authorities, and article 14, dealing with the settlement of disputes of interpretation and application by submitting them to the International Court of Justice. 21 In addition, Niger has attached reservations to article 15 which provides for the application of the Convention to all non-self-governing, trust, colonial and other nonmetropolitan territories for the international relations of which any Contracting State is responsible. Nevertheless, the key priority here is for more states to sign and ratify the convention in order to buttress the international legal framework and reduce the problem of statelessness. 18 United Nations. Convention on the Reduction of Statelessness: Treaty Series, New York: United Nations Publication, UNHCR. The UN Refugee Agency, supra note Convention on the Reduction of Statelessness. August 30, 1961: 1-5 (accessed April 20, 2011). 21 Ibid. Convention on the Reduction of Statelessness Countries with reservations, as of April 2011 Article 11 The Contracting States shall promote the establishment within the framework of the United Nations, as soon as may be after the deposit of the sixth instrument of ratification or accession, of a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority. 22 And Article 14 Any dispute between Contracting States concerning the interpretation or application of this Convention which cannot be settled by other means shall be submitted to the International Court of Justice at the request of any one of the parties to the dispute. 23 Article 15 (excerpt) This Convention shall apply in all non-self-governing, trust, colonial and other nonmetropolitan territories for the international relations of which any Contracting State is responsible; the Contracting State concerned shall, subject to the provisions of paragraph 2 of this article, at the time of signature, ratification or accession, declare the non-metropolitan territory or territories to which the Convention shall apply ipso facto as a result of such signature, ratification or accession. 26 Niger has attached reservations to articles 11 and Tunisia: [The Government of Tunisia] declares that it does not consider itself bound by the provisions of article 11 concerning the establishment of a body responsible for assisting in the presentation of claims to obtain nationality to the appropriate authorities, or of article 14, which provides for the competence of the International Court of Justice to rule on disputes concerning the interpretation or application of the Convention. 25 Niger has attached reservations to article UNHCR, Convention on the Reduction of Statelessness. (accessed April 22, 2011); (hereinafter referred to as Convention on the Reduction of Statelessness ) 23 Convention on the Reduction of Statelessness. Ibid. 24 United Nations Treaty Convention. Refugees and Stateless Persons. (accessed April 22, 2011). 25 Ibid. 26 Convention on the Reduction of Statelessness. supra note Refugees and Stateless Persons, supra, note 24. 7 Asylum and Refugee Protection in the Context of Counter-Terrorism The global campaign against terrorism has impacted the institution of asylum and refugee protection. Measures adopted by states either on their own initiative, at the regional level, or in response to the requirements of United Nations Security Council Resolution (UNSCR) 1373, 28 as well as those of subsequent resolutions, have generated serious concerns about the intersections between the protection regime and counter-terrorist policies and practices. While UNSCR 1373 called upon member states to take into consideration international human rights standards when adopting counter-terrorist measures, it also called upon them to ensure that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts. 29 To be sure, there was nothing legally questionable about such a call since all member states have an obligation (1) to ensure that their actions are consistent with the principles and purposes of the organization (United Nations), which include adherence to human rights; (2) to guarantee that humanitarian institutions such as that of asylum are not abused; and (3) to protect those individuals who are forced to leave their countries for reasons of persecution and other forms of violence, that often include situations resulting from acts of terrorism. The problem was that many states placed emphasis on the latter (potential abuse of asylum) at the expense of the former (adherence to human rights standards) through the prism of questionable legislative and administrative initiatives. What has contributed to this development (though by no means the only factor involved here) is the lack of consensus on a definition of terrorism. This lack has allowed states to provide their own definitions of terrorism and engage in practices which often violate fundamental tenets, as well as basic procedural guarantees, of human rights law and criminal law. For example, definitions that associate terrorism with any use of force or violence or any threat or intimidation to which the perpetrator resorts in order to prevent or impede the public authorities in the performance of their work are so broad that they can include legitimate demonstrations and other forms of protest. 30 In this context, concerns about the dangers posed by terrorist mobility and the exigencies of offering protection to those fleeing for reasons of persecution intersect in complex and often subversive, of international protection standards, ways. UNHCR has expressed its concerns over these developments. While recognizing that international terrorism poses unprecedented threats and challenges and indicating its full support for all legitimate efforts to secure national security and the safety of all, it has stressed the importance of the affirmation and valorization of the asylum and refugee protection system, even when the aforementioned efforts receive the priority they call 28 United Nations Security Council Resolution 1373, S/RES/2001, 28 September 2001, 29 Ibid, para. 3(g). 30 George Andreopoulos, United Nations Counterterrorist Strategies and Human Rights, in George Andreopoulos, Rosemary Barberet and James Levine (eds.), International Criminal Justice. Critical Perspectives and New Challenges. Springer, 2010: 157. 8 for. 31 This concern has been reinforced by the Special Rapporteur (SR) on the promotion and protection of human rights and fundamental freedoms while countering terrorism in a report which addressed the challenges that are posed to refugee protection by counterterrorism measures. 32 In that report, the SR identified some of the key issue areas in which counter-terrorism measures may adversely impact on the international protection regime, as well as on the right to seek and receive asylum. These include: pre-entry apprehension and screening measures; application of the principle of non-refoulement; detention of asylum seekers and immigrants; repatriation or resettlement of detainees in terrorismrelated cases; and the global responsibility for the international protection regime. 33 While this is a complex issue, it is imperative to emphasize here certain important points which are reflective of states obligations under international law, and in particular under international human rights law, international humanitarian law and refugee law (needless to say, the list is by no means exhaustive): (1) the need to stem the tendency to stereotype and stigmatize refugees as security risks (presumption of guilt and guilt by association violate fundamental precepts of international human rights law and criminal law, including, first and foremost, the presumption of innocence); (2) the need to acknowledge that there are already available instruments within the refugee regime, which can yield strong dividends for national safety and security, including in the context of counter terrorism. 34 These are: (a) refugee status determination; (b) the principle of exclusion from refugee status; and (c) a comprehensive system of refugee management; 35 and (3) and related to the previous one, the need to respect asylum seekers access to the territory in which they seek asylum, and permit them access to all the rights that they are entitled to in the determination and disposal of their claims to refugee status. 36 Last, but not least, it is instructive to recall that all states have an obligation under the United Nations Charter to take joint and separate action in cooperation with the Organization 37 for the achievement of the organization s purposes which includes universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. 38 Climate/ Environmental Change and Displacement 31 George Okoth-Obbo, Preserving the Institution of Asylum and Refugee Protection in the context of Counter- Terrorism: the Problem of Terrorist Mobility; Keynote Speech at the 5 th Special Meeting of the United Nations Counter Terrorism Committee with International, Regional and Sub Regional Organizations, Nairobi, Kenya, October 2007 (on file with the Center for International Human Rights). 32 United Nations General Assembly. Protection of human rights and fundamental freedoms while countering terrorism, A/62/263, 15 August Ibid. 34 Okoth-Obbo, supra note Ibid. 36 Ibid. 37 Article 56 of the United Nations Charter. 38 Article 55 of the United Nations Charter. 9 One of the m
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