The responsibility to protect - closing the gaps in the international protection regime and the new EXCOM Conclusion on Complementary Forms of Protection, Presentation by Erika Feller, Director of International Protection, UNHCR, to the "Moving On: Forced Migration and Human Rights" conference, NSW Parliament House, Sydney, Australia, 22 November 2005

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Ladies and gentlemen

I understand there is interest at this conference both in complementary forms of protection and the debate on it which took place in October this year at UNHCR's Executive Committee meeting, together with the conclusion it generated. I will cover these issues in my presentation, albeit with a Geneva twist and from a rather different angle. This is because complementary forms of protection do not stand alone. This is not a self contained issue, but finds its natural home within the broader debate around the notion of the "responsibility to protect," a key element in the current United Nations reform process. I intend therefore to devote some time also to the broader UN agenda and to protection gaps which this agenda needs to address. It is perhaps a bigger spectrum of issues than those which feature in the Australian debate, but I would certainly recommend that they be also given some space in your deliberations, with a view to moving the discussion here forward, in tandem with international thinking.

Origins of the concept of the responsibility to protect

The origins of the concept of a "responsibility to protect" are to be found in the debate in the 1990s about humanitarian intervention. At that time, the Security Council showed itself willing, in some circumstances at least, to characterize egregious human rights abuses as a threat to international peace and security, thus opening up the possibility of enforcement action under Chapter VII of the UN Charter. The problem was a gap between theory and practice, often with tragic consequences, as the genocidal acts in both Rwanda and Srebrenica showed. In addition, humanitarian intervention was, and remains, a politically charged and divisive concept – a fact which did not contribute to its positive reception or use.

Almost exactly a year ago, the report of the Secretary-General's High-Level Panel on Threats Challenges and Change set out its proposals for "a more secure world".¹ In it, the Panel endorsed what it called "the emerging norm of a responsibility to protect civilians from large-scale violence".

UN Secretary-General Kofi Annan, in his March 2005 report "In larger freedom", likewise urged all to "embrace the responsibility to protect, and, when necessary, ... act on it". This was further endorsed in the Outcomes of the September UN Summit, convened by the SG to review progress with implementation of the UN Millennium goals. This was actually one of the more positive results of a Summit which otherwise, many feel, did not live up to the expectations they had for it.

So what we have seen since the 1990s debate is an important shift in the focus from a "right of humanitarian intervention" to a potentially much broader "responsibility to protect". It is recognized that this responsibility rests first and foremost with each individual State; however, where the State is unable or unwilling, the international community shares a collective responsibility to act – through for example humanitarian operations, monitoring missions, diplomatic pressure and, ultimately as a last resort, with force. In theory, this could go quite some way to redressing root causes of displacement, which is only positive from UNHCR's perspective. It is also a most useful frame, we believe, within which to promote a more flexible and less discretionary approach to addressing the many protection gaps which still confront delivery of protection to persons of our concern.

Links to other issues

Human insecurity and displacement are the product of war, other forms of conflict and human rights violations. There are, though, other causes as well. As the Summit (and all that preceded it) made patently clear, there can be no real human security (incidentally another concept much in vogue) without there being progress in tackling other interlinked issues – poverty, disparities between rich and poor peoples and nations, migration push and pull factors, and environmental issues, among many others.

How this was background to what we tried to do at EXCOM this year

Of course, all these broader concerns extend way beyond UNHCR's direct mandate responsibilities. Nevertheless, as the world becomes ever more unequal, as inequalities in political power and resources such as land provoke social disintegration or exclusion in many countries, violence, forcible loss of nationality, and displacement result. And gaps in protection, along with the need for protection, materialize together.

The significance of the concept of a responsibility to protect is that it does not rest on mandates, or indeed on international conventions. Rather, it comes into play in response to needs. As a mission to Tsunami devastated regions earlier this year drove home to me, displacement, regardless of its causes, produces protection problems which are quite similar. We are seeing this again in Pakistan. It is beyond doubt that sexual and gender violence concerns, vulnerability of children to abuse, or legal property concerns, to take some random protection issues, are not restricted to refugees and asylum seekers. The protection situation may be equally acute for an earthquake victim in Pakistan, for an IDP in the Sudan, or for a victim of trafficking in Eastern Europe.

This being said, there are still rules of engagement to respect, which, as the International Commission on Intervention and State Sovereignty indicated in its 2001 report, give rise to complex questions of eligibility, legitimacy, sovereignty, political will and mandates, all of which need to be reviewed as we move to give this new responsibility concrete operational content.

You are probably all, at this point, wondering what this has to do with Complementary Protection and EXCOM. The short answer to this question is that we decided to see how far the notion of "responsibility to protect" could be brought into play in relation to groups of concern to us. We wanted to provoke a discussion outside the letter of Convention responsibilities and the constraints of mandates, but focused on protection gaps and how they might be bridged. We knew in so doing that we were coming at the question of complementary forms of protection from a rather untraditional angle. The traditional approach has been a more technical one, centred on identifying what are the minimum components of this alternative form of protection, how procedurally might it be brought into play, and how to make it compatible with other forms of available protection, notably refugee protection. These have all been well discussed and documented, including during the Global Consultations on International Protection which we ran with States from 2001 –2002. At this most recent EXCOM, we decided to try to encourage States to look beyond technical issues of procedures and status, and examine the adjustments necessary in the global protection regime to ensure there are no groups who fall through the cracks, that there are no gaps, if you like: in other words, to give genuine form to, and real outcomes flowing, from the notion of the 'responsibility to protect'.

So where are the gaps, necessitating a reinforced international response flowing from a responsibility to assist and protect? Perhaps it is opportune to start this analysis with IDPs.

IDPs

There are an estimated 25 million IDPs globally, far outnumbering the world's 9.2 million refugees. Their access to protection and assistance has been seriously impeded both by the absence of an agreed and implemented international law framework to guarantee access, and by the fact that no one international organisation has the mandate to intervene on their behalf. This has in fact now been recognised as a serious gap in the international protection system, necessitating a range of activities to fill it. The 1998 Guiding Principles on Internal Displacement, which purport to set out the basic normative framework, were a first step.

At the institutional level, there has also been tentative progress with making the UN response more "collaborative". UNHCR sees promise in the model for collaboration being developed, which is built around so-called "clusters" of activities, and has indicated its preparedness to coordinate the protection, camp management and emergency shelter clusters, albeit in situations of internal displacement caused by conflict (rather than those caused by natural disasters). We have, though, made clear that our cooperation is subject to some caveats, notably that whatever we do cannot be at the expense of the right to seek asylum and our work for refugees.

What all this represents, in the context of my presentation today, is some real progress towards closing the protection gap for IDPs. We are, though, still at the beginning here. There are complex issues still to resolve, one being whether it will always be realistic to build protection around categories of people. More specifically, the question being asked is whether it is artificial, in a complex emergency, to make a distinction between persons actually displaced and the broader population of the country, who may well be just as vulnerable. This is illustrated well, perhaps, by the situation in the eastern provinces of the Democratic Republic of Congo (DRC) – one of the countries where the new 'cluster' approach is to be piloted. It is exceedingly difficult there to distinguish between IDPs and the population at large. Humanitarian access is lacking; the population as a whole faces constant harassment by armed elements; sexual and gender-based violence is rife; there is no rule of law; and corruption is everywhere endemic and rampant. In these circumstances, should international responsibilities begin and end with IDPs only.

Stateless people

Amongst the various groups of non-citizens with protection needs which are not being met, stateless people figure significantly. In spite of the fact that the basic human rights as set out in the principle covenants have been recognised as "not limited to citizens of States parties but must be available to all individuals, regardless of nationality or whether stateless, .......who find themselves in the territory or subject to the jurisdiction of the State party", the reality is very different from this fine pronouncement of the Human Rights Committee. Stateless people, in particular, are the "forgotten problem" as far as a responsibility to protect is concerned. This is one group which, although covered legally, is seriously victimized as a result of gaps in commitments and response. The size of the problem is not mapped, there are international norms but only limited subscription to them, and UNHCR's mandate for stateless people, albeit of long standing, is still having to confront a climate of skepticism, even non-acceptance on the part of important states.

For the millions of stateless people around the world, lack of nationality means they face countless problems realising their most basic rights. Imagine that you have no nationality. You cannot obtain the identity documents that are increasingly necessary simply to go about everyday life. You cannot register your children when they are born. You cannot own property or go to school. You cannot travel abroad or sometimes even within the country where you reside. In many ways, you simply do not exist.

Whether the cause is the dismantlement of empires, federations as well as the separation of States, lack of proper registration at birth, gender discrimination or conflicting citizenship laws, the result is an estimated 9 to 11 million people are trapped in this limbo.

The international legal framework is there in the shape of the 1954 Convention on Statelessness and the 1961 Convention of the Reduction of Statelessness, but there are still only 57 State Parties to the former and 30 to the latter. When compared to the number of parties to the Refugee Convention and its protocol now at 146 – with the recent accession of Afghanistan – it is clear that wider accession remains an important aspiration. There are so many seemingly simple achievements which remain elusive: birth registration procedures being in place in all States, for example, or ensuring equal access of women, like men, to an effective nationality. Resolving statelessness situations, particularly those which are protracted, requires comprehensive strategies, but also, as important, political will which has hitherto been absent.

UNHCR recently launched a handbook in association with the Inter-Parliamentary Union to raise awareness on the issue (soon to be available in Australia and already available on line). We hope it will prove a useful tool to address protracted statelessness situations and encourage States to find ways to end them.

Refugees

With this category of persons, the gaps are, perhaps, at least better known and documented. The protection gap is not really a normative one. Rather it stems from inadequate adherence to proper practices and implementation deficits as regards the principles.

At the heart of these problems are misperceptions, deliberate or otherwise, which have come into play not least because refugee and asylum issues are now so deeply mired in the broader issues of international security, irregular migration, transnational law and order, and crime.

Today asylum seekers are repeatedly mis-characterised as criminals, 'possible terrorists' or illegal migrants whose presence is to be managed as a matter of border and crime control, and whose protection needs are a secondary issue.

With a taint of illegality, abusive behaviour or criminality hanging increasingly over asylum seekers, perceptions about which are genuine refugees, and what is the nature of the refugee problem, have also started to change.

How a problem is characterized can be very significant to how it is managed. To put it simplistically, to see the refugee problem as an issue of human rights creates protection space. To see it as essentially an immigration issue works often to deny protection to those in need. The mischaracterization of the issue, particularly in the developed world, has contributed to a serious reduction here in the rights accessible by refugees and the responsibilities to them which States are prepared to acknowledge.

Protection gaps result, which UNHCR has sought to address through initiatives to re-instate the centrality of international refugee law, encourage its flexible interpretation, but also to locate the principles in their modern context so that they cannot be swept so easily aside as somehow outdated or irrelevant. We have also cooperated in efforts to devise new tools to manage problems of a mixed character, so that refugees, who may – indeed do – arrive side by side with irregular, would-be migrants, or excludable persons of dubious background, are identified and lifted out of the complex of barriers to entry. We have also actively promoted the appropriate use of complementary forms of protection to which I will shortly return. Our participation in the Bali Process and the Asia-Pacifiic Consultations on Asylum and Migration are regional example of efforts to work with States to help manage mixed movements of migrants and asylum-seekers better in this region.

If I have focused on the protection gaps for refugees who somehow manage to make their way to chosen destination countries, it is because it has a particular relevance for today's audience here in Australia. There is also, however, a whole other side to refugee protection where it is undertaken in the developing world, in countries of first asylum. Here, more often than not, we are talking of large scale arrivals, insecure camp hosting environments, under-funded programmes, and protracted stay. The gaps in protection are, as a result, many. UNHCR is currently piloting a new approach to gap identification, consensus-building, and programme delivery, which, we sincerely hope, will assist us to improve the quality of protection and the accessibility of solutions closer to the point at which the need first arises, and before it becomes acute.

Returnees

There are also protection gaps for refugees who return voluntarily to their home countries. These lie very much in inadequate follow-up to ensure that return is sustainable over the longer term. Follow-up of this sort has fallen victim to lack of funding, lower priority being accorded to returnee programmes, and mandate gaps between different agencies. Refugees often return in less than ideal conditions to situations of only partially resolved conflict and to places ill suited to their reintegration due to a range of political and economic impediments. UNHCR has placed considerable emphasis over recent times on programs in the area of transitional justice and reconciliation of communities, and on managing the relief to development continuum, including through encouraging investment in return through development aid.

We have urged donor countries to spend a share of development aid on durable solutions for returnees and the communities to which they return in post-conflict situations, through a 4Rs programme – focused on Repatriation, Reintegration, Rehabilitation and Reconstruction. And we have urged countries of origin to implement the 4Rs by systematically incorporating measures conducive to the sustainable return of refugees in national development plans and poverty reduction strategies. UNHCR has also been working with the UN system to strengthen linkages with development agencies.

For us the links are clear, even if, unfortunately, many States and some development agencies remain to be convinced.

The EXCOM Conclusion

To this point, I have been talking of the bigger picture. Complementary protection regimes are certainly part of it, whether they take the form of visa arrangements, specifically provided for in legislation, which extend protection coverage to defined categories of persons, who, for whatever reason, are held to be outside the refugee convention; or whether they derive from human rights convention responsibilities; or whether they flow from discretionary and time-limited protection arrangements for particular situations.

The issue of Complementary Protection has not been one that EXCOM has been ready to address through a conclusion in the past. Hence, the approval of this year's Conclusion is in itself a step forward. The overall aims of the Conclusion, from our point of view, were twofold:

1. to conceptualise complementary forms of protection within a multidimensional global regime for international protection – including, importantly, to position it as part of the "Responsibility to Protect"; and
2. to promote greater harmonization and complementarity in State practice.
   More specifically, we hoped States would agree with us on some four propositions: 1) that protection needs to be provided and the global system developed in a way that leaves no gaps; 2) that States make maximum and flexible use of existing instruments, notably the 1951 Convention, before resorting to more discretionary forms of status; 3) that where status of whatever sort is being considered, protection needs are prioritized as a key consideration, even when there may be others; and 4) that UNHCR is accepted as a credible and legitimate consultative partner on all forms of international protection. We were also hopeful that States might see the wisdom of a single procedure to house all the various forms of complementary status.

I cannot say that we were totally successful in achieving our aims, but the Conclusion was at least a good start. The debate generated broad agreement that the international protection system has to be developed in a way which avoids protection gaps, and that complementary protection may be a practical way to address protection needs not covered by existing instruments. The process of negotiation lead to some timely reaffirmations, including of the centrality of the 1951 Convention in the international protection regime.

Of course, like outcomes from any multi-lateral process, conclusions are the result of negotiation, trade-offs and compromise. No agreement was possible on more detailed issues, such as the criteria for granting or ending complementary protection.. The debate revealed very diverse perceptions and practice as to the scope of this protection, particularly for people fleeing indiscriminate and generalised violence. Some States clearly preferred to confine their obligations to persons falling within the 1951 Convention, together with those facing return to torture as defined under the 1984 Convention against Torture. As to persons fleeing violence, there was a wide gulf between those States who extended refugee status in a more flexible manner and those who acknowledged no obligations going beyond those accepted through an exercise of sovereign discretion.

On the content of complementary protection regimes, the diversity of opinion was also marked. States took widely differing positions on the rights to be afforded, ranging from nothing more than protection against refoulement, right through to enjoyment of all the rights normally afforded to refugees. Areas of particular divergence included legal residence status, identity or travel documents and/or rights to family reunification. There were also wide differences apparent in procedures followed to accord complementary protection.

In short, there was not sufficient common ground to enable a conclusion going beyond quite broad generalities. The nature of the debate at EXCOM clearly brought out that we are some way off translating into action the theory of a responsibility to protect. There is a strong reluctance to give a proper place to needs and gap filling as important determinants.

Conclusion

To reflect briefly then on how these international developments might relate to the situation in Australia. In recent times we have seen a number of pragmatic steps in the direction of recognising a 'responsibility to protect', together with important instances of gap filling, even if the Government remains wary about referring to them as complementary forms of protection. Here I am referring to the ongoing public interest powers of the Immigration Minister to grant visas, the temporary Safe Haven Visas for Kosovars in 1999 and equivalent Safe Haven Visas for East Timorese the same year; the more recent Return Pending Visa (2004) and Removal Pending Bridging Visa (2005), and even the temporary humanitarian visas given to people recently arrived from Nauru all of which have a different range of rights and benefits attached.

In Australia, the starting point seems to have been sovereignty and ministerial discretion, exercised in accordance with the demands of national interest. It remains our hope, as we demonstrated at EXCOM, that States will be able to move beyond the sovereignty/discretion approach, and put in place a system which integrates the various available forms of protection, expedites the process of their consideration, and achieves a situation where people with genuine needs do not fall through the cracks. This is not only important from the protection perspective, but it makes makes good, cost effective, common sense. We accept, and as the EXCOM debate brought out, that the challenge is to do this without compromising national interests. We are not suggesting that it is the responsibility of all states to take all people who present themselves as having protection needs. Rather, the challenge is to recognise that addressing these needs is a collective responsibility – flowing from the 'responsibility to protect' – and for states to find innovative ways to do this, of which there are a number of possibilities. Setting up a complementary protection regime for arrivals is just one of these possibilities.