B Explanatory memorandum
by Lord Leslie Griffiths, rapporteur
1 Introduction
1. The 70th anniversary
of the Convention Relating to the Status of Refugees offers a time
for reflection as we consider the importance and impact of a measure
that has saved millions of lives and offered a strong framework
for the protection of those with a well-founded fear of persecution.
The Convention has been described as “one of the most widely accepted
international norms [that] remains the sole legally binding international
instrument that provides specific protection to refugees.”
Note
2. The Conference of Plenipotentiaries which launched the 1951
Refugee Convention expressed the hope “that governments in the countries
of first refuge would grant the right of asylum within their territories
with the utmost liberality and [that other countries would] undertake
jointly with the countries of first reception to bear the costs
arising out of [such efforts].” It went on to urge “governments
[to] continue to receive refugees in their territories and that
they act in concert in a true spirit of international cooperation
in order that refugees may find asylum and the possibility of resettlement.”
Note
3. It’s a matter of fundamental importance that we remind ourselves
of the hopes spelled out in 1951 as we face the challenges of the
present moment. We must over and again find ways of displaying the
same qualities now – “utmost liberality,” “bearing the costs jointly,”
and a “true spirit of international cooperation” – as we look towards
the future all these years later.
4. So there is plenty to reflect on (and give thanks for) as
we look at past progress in this area. But, just as surely, we need
to examine some serious challenges as we consider how best to move
forward. A number of developments on our own continent carry the
risk of eroding the framework of agreements, of which the 1951 Refugee
Convention is one, within which we have worked over the decades.
This is a critical moment and it is important to face these risks
honestly and fearlessly.
2 The 1951 Convention and its 1967 Protocol
5. The 1951 Refugee Convention
is both a status and rights-based instrument anchored by a number
of fundamental principles, most notably non-discrimination, non-penalization,
and non-refoulement. It lays
down basic minimum standards for the treatment of refugees and provides
a particular role for the United Nations High Commissioner for Refugees
(UNHCR) with whom States undertake to co-operate. The Convention’s 1967
Protocol importantly removed the Refugee Convention’s temporal and
geographical restrictions to make it possible for it to be applied
universally.
6. The original aim of the Convention was to protect the two
million people who were still displaced six years after the ending
of the Second World War. The 1967 Protocol broadened the scope of
the Convention to include refugees not just in Europe but across
the world. 149 States are now party to one or other of these documents.
This reflects a global consensus on our shared humanitarian values
and it is noteworthy that key principles set out in those agreements
now have the status of customary law binding upon all nations.
7. As the first and only modern codification of international
refugee law of universal scope, worldwide, and in terms of its history
and relevance, it bears several similarities with the Council of
Europe’s Convention on Human Rights (ETS No. 5). The guarantees
enshrined in both conventions create synergies that offer a very solid
human rights protection framework for refugees. European States
are, therefore, well placed to play a major role in upholding the
Refugee Convention and to develop its aims.
8. The scale of need in these matters has increased exponentially.
There are currently 82,4 million refugees and people displaced in
their own countries and “unknown millions” who are stateless.
Note Against this stands a total of 26.4
million registered refugees now hosted in countries around the world,
testament to those governments which have endorsed the Convention
in both word and deed. But those figures also serve as an indication
of the size of the challenge that remains ahead of us. This is all
before the recent and ongoing events in Afghanistan.
9. New international commitments and pledges towards refugee
protection are formulated by States in the Global Compact on Refugees
(GCR) adopted by the United Nations General Assembly on 17 December
2018. This seeks to enhance humanitarian responses and to operationalise
the principles of burden and responsibility sharing which should
offer better protection to refugees and stronger support to host
countries and communities.
10. The Standing Committee of the Assembly adopted on 28 May 2021
Resolution 2379 (2021) “The Role of parliaments in implementing the United
Nations Global Compacts for Migrants and Refugees” based on the report
Note by Mr Nicos Tornaritis (Cyprus,
EPP/CD). The role of parliaments in supporting the 1951 Convention will
also be an important aspect of this report. We need to redouble
our efforts to ensure that the parliaments we represent enhance
their co-operation with the UNHCR in our joint effort to meet the
objectives on refugee protection, including economic recovery of
countries of origin and refugee resettlement measures.
3 The
role of the Council of Europe and Office of the United Nations High
Commissioner for Refugees
11. The UNHCR is mandated to provide
international protection, as well as to lead and co-ordinate international
action to protect refugees and, together with States, to provide
solutions to their problems worldwide. It also intervenes on behalf
of stateless persons and, in some cases too, on behalf of internally displaced
people. In the course of writing this report, I have had an opportunity
to interact with UNHCR officials in London, in Strasbourg and in
Geneva.
Note These
fruitful encounters have allowed me to make some helpful adjustments
to both the report and the draft resolution.
12. The UNHCR works in 134 countries across 546 locations.
Note It has a Representation in Strasbourg
which allows for a very close collaboration both with the Council
of Europe and the European Parliament. That presence which was established
in 1996, originally as a liaison office and, along with its branches
in 15 countries across the continent (including Parliamentary Assembly
partner for democracy countries),
Note has contributed significantly to
a cross-fertilising and co-operative role for us all.
13. In our own region, the UNHCR is concerned with the plight
of 6.6 million refugees, 2 million internally displaced people,
1.2 million asylum seekers and 0.5 million stateless people.
Note The UNHCR Representation to the
European Institutions in Strasbourg engages on an ongoing basis
with the Council of Europe and the European Court of Human Rights
in its efforts to provide protection against
refoulement and
the risk of arbitrary detention.
14. The UNHCR benefits from continued partnership and close co-ordination
of activities with all relevant entities of the Council of Europe
Note including the Committee
of Ministers and other key bodies such as the Parliamentary Assembly,
the European Court of Human Rights,
Note the Congress of Local and Regional Authorities,
the Commissioner for Human Rights, the Special Representative of
the Secretary General on Migration and Refugees, the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment,
Note the Group of Experts on Action against
Trafficking in Human Beings,
Note Group of Experts on Action against
Violence against Women and Domestic Violence,
Note and other committees
Note. In addition, UNHCR Strasbourg reports
on the discussions of the European Parliament plenary sessions in
close co-operation with UNHCR’s Representative for EU Affairs in
Brussels.
15. The key activities of the UNHCR Representation to the European
Institutions in Strasbourg include monitoring the case law of the
European Court of Human Rights and the work of different Council
of Europe bodies, submitting third party interventions before the
Court (there have been over 40 such cases to date) and scrutinising
the implementation of the Court’s judgements. It contributes to
intergovernmental committees and facilitates submissions to the
Committee of Ministers and provides technical advice and support
across its field offices. On a regular basis, it provides information
relating to people or situations of concern to the UNHCR and their
countries of origin to the Council of Europe bodies. In collaboration
with the Council of Europe, it acts as a resource for meetings,
sessions and conferences; it organises seminars and capacity-building
events; and it helps develop on-line training tools for judges,
lawyers, prosecutors, asylum decision-makers and NGOs.
Note It is constantly engaged in advocacy
to support correct application of international legal standards
and responsibility sharing for refugee protection, consistent with
its mandate.
16. The UNHCR and the Council of Europe share a common commitment
to all the principles and values spelled out in the 1951 Convention
and the 1967 Protocol. The protection of refugees continues to be
at the core of our work with the need to protect against refoulement, the prevention of arbitrary
detention and the promotion of social inclusion and integration
as the most important priorities. Both organisations face the uncertainties
of the future with real concern but their symbiotic work should
enable them to move forward.
4 Highlighting
UNHCR activities in the Parliamentary Assembly
17. In November 2005, the Assembly
adopted Resolution 1474 and Recommendation 1729 “Activities of the United
Nations High Commissioner for Refugees”. These texts were based
on a report by Mr Mike Hancock (United Kingdom, ALDE) which recalled
the historical context of the Convention and affirmed the need to consider
the establishment of a new impetus which would allow for more international
solidarity. It called upon member States to strengthen their commitments
to upholding the rights of refugees and asylum seekers.
18. Recommendation 1729 also referred to the UNHCR “Convention
Plus” process which ultimately led to the adoption of the United
Nations Global Compact on Refugees. The Committee of Ministers’
reply to the recommendation highlighted the actions taken by the
European Committee on Legal Co-operation (CDEJ), on which the UNHCR
has an observer seat, and by the Council of Europe Development Bank.
It should be noted that a memorandum of understanding had been signed
on 14 March 2005 between the Bank and the UNHCR “in order to continue
to contribute to finding just and durable solutions to the problems
of refugees in the Balkans.”
19. Sixteen years after these texts, it is important to re-emphasise
the Assembly commitment to the 1951 Refugee Convention and its 1967
Protocol and to express once again its full support to the UNHCR
as an organisation established to co-ordinate world action for the
international protection of refugees and asylum seekers.
5 A
critical moment – the challenges to be overcome
20. The 70th anniversary of the
Convention encourages us to assess the immeasurable good which has been
achieved since its adoption. At the same time, it offers an opportunity
to take a critical look at what confronts us. Without any doubt,
this is a time of crisis. It serves no purpose to deny or disguise
this fact. Key voices from within the UNHCR and the world of NGOs
have highlighted a number of factors which must be faced honestly
and realistically. It should be noted that, compared with the nearly
90% of refugees who are hosted by poor or developing countries,
those who find their way to Europe and other safe havens amount
to a relatively small and (what should be a) manageable number.
It’s important to bear that in mind as we look at the following
factors:
- Many refugee determination
processes are weak, resulting in backlogs over years. Those asylum seekers
found not to be in need of international protection all too often
cannot be returned to their country of origin. Nor can those who
arrive from countries where protracted conflicts give every appearance
of being irresolvable – countries like Afghanistan, Syria, Myanmar,
those in the Sahel region, Democratic Republic of the Congo and,
more recently, Ethiopia and Mozambique. All this undermines the
integrity of the asylum regime.
- Some States push back asylum seekers at sea, while others
deny disembarkation. The protection of borders is in some places
militarised and it seems that live ammunition has been used at times. Pushbacks
can be accompanied by violence with immigration officers acting
like soldiers and refugees treated as if they were enemy combatants.
Once pushed back, these people can end up in abysmal conditions
in countries with inadequate and under-resourced asylum systems.
- Some States seek to transfer their protection obligations
to other, usually poorer, nations and isolated islands, detaining
asylum seekers in poor conditions indefinitely. Libya is often referred
to in this regard. Since 2016, co-operation with the Libyan authorities
has played a central role in the European strategy of stemming arrivals
to Europe by sea. In five years, around 70 000 people have been
intercepted by Libyan coastguards in the central Mediterranean and
returned to Libya to face arbitrary detention in abysmal conditions,
exposed to torture, ill-treatment, rape, extortion, forced disappearance
and killings. The United Nations has provided plenty of evidence
of these violations. And the Libyan example isn’t the only one.
There are other instances too of rich countries paying their way
out of their international obligations in direct violation of the
European Convention on Human Rights and the principle of non-refoulement and responsibility-sharing.
- A worrying feature of recent date is the tendency to criminalise
solidarity and life-saving activities. Solidarity and compassion
have in this way been turned into a crime across the world – including
Europe. People who have helped migrants and refugees have been investigated,
charged and, in some cases, convicted just for providing assistance
in the saving of lives, or for monitoring human rights, or for standing
in solidarity with migrants and asylum seekers. Some States have
misused anti-smuggling laws to curb solidarity and humanitarian
acts intended to protect the rights of migrants and asylum seekers. All
this in defiance of the clear imperative (under the terms of the
Convention) to provide life-saving services to the maximum extent
or, if unable or unwilling to do so, to facilitate such services
by others whether they be States or humanitarian actors in the private
sector. Saving lives is not a crime, feeding starving people is
not a crime, providing shelter to families in need is not a crime.
These activities are based on our fundamental values.
- Some States are using Covid-19, economic challenges, and
irregular arrivals of migrants as cover for disproportionate measures
restricting access to asylum and to the rights protected by the
Refugee Convention such as the right to livelihood and freedom of
movement.
- Another proposal seeks to introduce a different “sheltered”
system of access to its asylum system so that, if access is permitted,
there would be a differentiated standard of asylum for those entitled
to it. Article 31(1) of the 1951 Convention reads as follows: “[The]Convention
prohibits the penalization of refugees on account of their illegal
entry or presence if they have come directly from a territory where their
life or freedom was threatened, present themselves without delay,
and show good cause for their illegal entry or presence.” There
is a deep division of opinion about what constitutes “directly”
and also the nature of such penalties as may be applied. These differences
are vitally important since they affect the way the provisions of
the Convention are applied with some important divergences from
hitherto accepted practice. UNHCR continues to provide authoritative
guidance on the interpretation of such provisions, in a manner consistent
with the 1951 Refugee Convention’s ambition to ensure the ‘widest possible
exercise of […] fundamental rights and freedoms’ by refugees.
21. This list of challenges is meant to be illustrative rather
than exhaustive. They give a clear indication of the precarious
nature of the present moment as we consider the importance of the
UN Convention on its 70th anniversary. And it raises the simple
question of where this leaves us now.
6 Parliaments,
Council of Europe and UNHCR – working together in a strategic partnership
22. It is important to remind ourselves
of the binding nature of the Convention and its Protocol. The challenges
are great but the rewards for overcoming them are even greater.
And there are courses of action, practical programmes, available
to us to help us to do this. It is time to look at some of them
now.
23. First of all, there is the Global Compact on Refugees already
referred to. An impressive 181 nations have endorsed this UN programme
since its launch in 2018. The Assembly
Resolution 2379 (2021) was one of the first parliamentary instruments in the
world to give a formal and positive response to the Global Compact
on Refugees. The Compact is a break-through. It offers a legally
non-binding, readily accessible framework document, written in plain
language, under which States agree they will share equitably the
responsibility for refugees. In addition to the response of the
States, the wider international community, civil society, NGOs,
the private/business sector, parliamentarians, faith groups, scholars
and city mayors are now also committed to the Compact’s objectives.
Together, it seeks to offer help to host nations and to enable refugees
to be self-sufficient in the countries where they have found refuge.
These principles are to be implemented through the more than 1 400
pledges made by governments and civil society and other stakeholders
at the first Global Refugee Forum in December 2019. Their impact
will be assessed by evidence and data. On 14 and 15 December 2021
in Geneva, a high-level meeting will take stock of progress in implementing
the pledges and to plan for the next Global Refugee Forum in 2023.
Note
24. The EU Pact on Migration and Asylum presents an opportunity
for concerted regional and global action rather than unilateral
initiatives that push the challenges posed by refugees onto others.
All this is coming about while the European Union and its institutions
are increasingly guided by human rights standards emanating from
the Council of Europe. The fundamental rights framework and refugee
standards enacted by the European Union is itself bound to international
law – including the European Convention on Human Rights and the
1951 Refugee Convention. With the European Union expected to accede
to the European Convention on Human Rights in the foreseeable future,
normative protection of refugees in Europe should become further consolidated
and strengthened.
25. The Walk with Little Amal is under way as this report is being
compiled. Amal is the Arabic word for Hope and this remarkable 3.5
meters high puppet represents a 9-year-old refugee living in a camp
whose mother disappeared after a shopping trip. The “Walk” will
cover 9 000km and visit eight countries from the Turkish/Syrian
border, through Strasbourg, and ending her journey in Manchester
in early November. A glittering array of talented people from the
worlds of entertainment, the arts, sport and civil society are supporting
this project. A Palestinian playwright, puppeteers from South Africa,
Eritrea and Taiwan, together with theatre managers and sporting
heroes from across the continent will take the show on the road.
A staggering “250 charities, community and arts organisations along
one of the world’s busiest refugee routes [will offer] a charismatic
and emotional gesture of hope that will flow like a river of goodwill
through two continents.”
Note It is
important to include a reference to this event in a report of this
kind – the response to this artistic contribution might well challenge
assumptions about public attitudes to migration currently held by
our political leaders and parts of the popular press.
26. Those initiatives apart, it is important to identify the work
done by bodies and programmes within the Council of Europe towards
the protection of refugees and the bodies in association with it.
27. We should certainly understand the advantages of our close
working relationship with UNHCR. Since it became the only UN agency
to open a dedicated office in Strasbourg in 1996, and in the spirit
of a formal memorandum of understanding concluded with the Council
just three years later, there has been a growing potential to exploit
synergies. For example, the interpretation of the European Court
of Human Rights of Article 3 of the Convention on Human Rights as
prohibiting forcible removals to situations posing real risk of
torture, inhuman or degrading treatment gave us a natural common
purpose. So too did the development by the Council of Europe of
a number of specialised human rights instruments, standard-setting
and monitoring bodies covering persons of concern to UNHCR, especially
those most vulnerable on account of their age, gender, race, religion
etc.
28. A good example of a successful collaboration with the Council
of Europe are joint capacity building events, including the jointly
developed the HELP (Human Rights Education for Legal Professionals)
online self-study course on asylum and human rights. This was recently
released in a modernised, revised and updated version. It offers
interactive learning on how legal practitioners can exploit synergies
between human rights and refugee law. UNHCR has been facilitating
different language versions and contributing to launching events
of this course for several Council of Europe countries in collaboration
with the HELP programme. It was launched for an online audience
of legal experts from across the Council of Europe at the end of
May 2021.
29. In recent years, the Council of Europe has, in the area of
migration, chosen to highlight one particular aspect of the migration
agenda by bringing forward what they call an action plan. In the
years 2017–2019, for example, it opted to focus on “Protecting Refugee
and Migrant Children in Europe”.
Note More recently, the Committee of Ministers
chose “Protecting Vulnerable Persons in the Context of Migration
and Asylum in Europe,” a theme that will run in the years 2021-2025.
It’s not too early to give some thought to the subject for a plan
that might follow on from this or at least be included in this.
What about, for example, aligning ourselves with the UNHCR to “encourage
the strategic use of resettlement as a tool of protection, a durable
solution and a tangible form of burden-sharing in protracted refugee
situations” – as proposed by the Assembly in Resolution 1474 (2005)?
It was in 2019 that UNHCR and its partners launched its “Three Year
Strategy on Resettlement and Complementary Pathways
Note which
aimed at the resettlement of one million refugees and the admission
of two million others through complementary pathways such as family
reunification or labour mobility schemes. It set itself the target
of achieving these goals by 2028.
30. Resettlement can, and should be, successful for both refugees
and asylum seekers on the one hand, and host communities on the
other. It requires specific efforts by host countries (for example
fighting hate speech against migrants and refugees, working to improve
press coverage, facilitating the access of refugees to education
and employment and enhancing their social integration with the involvement
of diaspora networks). These issues were highlighted in a series
of webinars organised by the British Parliament on the initiative
of Lord Alexander Dundee and Lord Alf Dubs in co-operation with
the Organization for Security and Co-operation in Europe (OSCE).
Note A
pan-European Action Plan to support resettlement and enhance refugees’
self-reliance would be a true mark of European leadership in humanitarian
relief and human rights protection. It would be a programme undertaken
exactly in the spirit of the 1951 Convention.
31. This brings me to an important organisational matter: the
need for an intergovernmental partner in the Council of Europe.
The above mentioned
Resolution
1474 (2005):
- 8.3 sought clarification
of “the respective responsibilities of Council of Europe member
States in the event of irregular secondary movement of refugees
and asylum seekers”;
- 8.10 stressed “the need for continued joint efforts at
national and regional level to avoid and reduce statelessness”.
These actions would clearly need strong intergovernmental
co-operation with the possibility of bringing together government
experts from all 47 member States of the council of Europe. Notwithstanding
the praiseworthy co-ordination role of the Special Representative
of the Secretary-General on Migration, it would be very important
to either have a fully-fledged intergovernmental body dealing with
matters pertaining to the international protection of refugees and
asylum seekers in Council of Europe member States, or to ensure
that all relevant expert bodies and intergovernmental committees
pay priority attention to refugee and migrant issues, enhancing
co-ordination on this matter, in close co-operation with the UNHCR.
32. I am aware that the Committee
of Ministers has revised the terms of reference of the European Committee
on Legal Cooperation with a view to enabling it to work on statelessness
and administrative detention of migrants, in particular migrant
children.
Note I am also aware of the work of the
Steering Committee on Anti-Discrimination, Diversity and Inclusion
which aims at steering the Council of Europe’s intergovernmental
work to promote equality for all and build more inclusive societies,
offering effective protection from discrimination and hate and where
diversity is respected.
Note
33. The question that remains is whether this is sufficient or
whether there might be a need to have a dedicated intergovernmental
structure that would consider all aspects related to the protection
of refugees and asylum seekers, as well as migration-related matters.
An interdisciplinary approach would be crucial since the resettlement
and integration of refugees and asylum seekers needs public support
in many fields – education, health, access to employment, legal
status and documents, housing, etc.
7 Conclusion
34. I am very proud of the part
played by the British Government in the process that led to the
publication of the 1951 Convention. It gives me great pleasure to
read that the UK representative at the Conference of Plenipotentiaries
which met a few months later that the launch of the Convention “expressed
the hope that the Convention would have value as an example exceeding
its contractual scope and that all nations would be guided by it
in granting so far as possible to persons present in their territory
as refugees and who would not be covered by the terms of Article
1 the treatment for which this Convention provides.”
Note
35. I also note how the Convention was ratified in July 1951 by
a British Labour Government and its enactment fully committed to
in 1954 by a British Conservative Government. The treatment of refugees
was, from the outset, a matter of universal human rights rather
than party politics. It drew support from across the political spectrum
– a common human response to common human needs. A lesson to be
heeded in this anniversary year.
36. The present situation, however, seems to stand at odds with
this picture from the past. We are living in fractured societies
where, so often, the plight of refugees has become heavily politicised
by those contending for (or administering) power on both the left
and the right. This is a time for serious reflection, for digging
deeply into our European conscience, to see whether we can find
a way to re-affirm our commitment to the principles of non-refoulement, non-discrimination
and non-penalisation which focused the minds of those who gave us the
1951 Convention and also to share the burden carried so disproportionately
by those of our community on the front line.
37. A man caught up in the bloody civil war in England in the
17th century was described as someone
“whose singular praise it is to have done the best things in the
worst times and hoped them in the most calamitous.” We are living
in calamitous times right now and hope must not be allowed to die.
The protection we give to refugees and stateless people will be
a measure of our success on this front.
