[1] Professor James Hathaway recently wrote "international refugee law is in crisis".
[2] Most will agree that this is so but not all will agree that this state of affairs is inevitable. Some see malevolent forces at work which exacerbate the situation.
[3] The Secretary General of the UN Kofi Annan and the late Julius Nyerere feared a lack of will at the very least in western policy to move toward some solution. They see evidence of this in a readiness to contribute billions to dying refugees but no equal amounts to long term development programmes. Nyerere commented in an interview, shortly before he died, that
[5] One cause of these movements is a world awash with new oppressors - men and women with either guns or persuasive tongues, often stepping into the gaps left by the departure of colonial powers, where there is no established dispute resolution procedure in the political book.
[6] Another factor is that there is usually a neighbouring state who cannot, even if they wished, keep them out but who itself is either unstable or poor or both - and without the clout on the world stage which the western nations possess. The malevolence has been said to be the policy to maintain in power many of these oppressors - perhaps for fear of an instability causing yet further threat: A threat made more easy by modern facilities of intercontinental travel.
[7] The greatest burden however falls upon the poorest and least stable nations. Togo with half a million refugees, Uganda with over a quarter of a million are two examples among many. In Europe for every 1000 Swiss citizens there are nearly 7 refugees: In France only half a refugee. Cyprus, Finland, the Slovak Republic (155%) and Liechtenstein experienced an increase in refugees of well over 100% in 1999. Bulgaria and Slovakia do not have enough to feed themselves let alone refugees and are struggling to try to establish some sort of acceptable democracy in order to persuade the EU to let them through their 'Golden Doors'. UK's increase was 52% and the Republic of Ireland 67%.The imbalance of the world economic scene makes the 'economic migrant' and 'bogus refugee' expressions which come trippingly, and appealingly, off the tongue. This imbalance is no doubt crucial and made worse by civil wars, floods and droughts.
[8] The Conventions and Agreements set in place in Europe for European migrations were expanded to have world wide application; firstly by modification to the 1951 Convention in 1967 and secondly by regional instruments such as the OAU Convention and the Cartagena Agreement. Between the three there are over 136 participating countries and many countries who have signed none still both produce and receive large numbers of refugees often applying the principles enshrined in them.
[9] The EU made a number of high sounding and optimistic decisions on Burden Sharing amongst themselves and a topic which the Malawian Council member of the Association wants to be put on the agenda for discussion at the next Seminar in Africa. It also came up in Delhi at a Conference held for the Judges and Human Rights Organisations and organised by the UNHCR with IARLJ participation.
[10] It is against this background that the principle of surrogate protection struggles not only to survive but to become established as part and parcel of an obligation by each state in the world to condemn human rights abuses wherever they take place and act where ever possible - particularly to afford a refuge to those seeking escape from such abuses.
[11] Certainly in Europe there is evidence of a minimalisation of effective protection in the ideas, policies, legislation and in the interpretation of the 1951 Convention. The UK for example are so concerned at the prospect of being (legally) unable to remove many more asylum seekers due to the domestic implementation of the European Convention of Human Rights that there is serious talk of repealing the Human Rights Act of 1998.
[12] Whilst none of the Conventions call for any particular form of judicial reassessment of the initial administrative decision of an asylum clam many countries do so provide: A separate Tribunal with judicial or quasi judicial members sitting on them: In other cases regular judges seconded for periods to deal with appeals: In others the general Administrative Courts will handle appeals. In many countries Judicial review remains as a backstop to protect all within the jurisdiction - citizen and stranger alike - from an excess or abuse of power by the executive.
[13] A worrying feature is the attack, in some countries, upon Judicial Review. Lord Denning held to the view that Human Rights were best protected if left to the judges. Nothing that I have seen, especially in my recent experience in relation to this jurisdiction, leads me to question his judgment. What seems to me to be of transcending importance is that when, as a nation we look in a mirror, the reflection we see is not the mean and unsympathetic streaks of character, the inhospitality we may individually suffer from, but the strength and integrity of Nations which recognises and opposes brutality where ever it occurs and offers hospitality to the stranger - to share in both our wealth and our poverty.
[14] The IARLJ was formed as a vehicle to assist judges, primarily in the exercise of jurisdiction in asylum and refugee matters coming before them. We can do this by identifying matters of concern, collating and sharing information and experience, training (by whatever name), encouraging and assisting courts toward reaching similar interpretations of a common source of jurisprudence, the 1951 Convention or where not possible at least to be aware of and understand our differences. No burden sharing can work if every country is pulling in different directions - forum shopping for a start is encouraged.
[15] We aspire to encourage all states to apply the rule of law and adopt fair procedures in considering the claims.
[16] In our presence we enable ourselves and other institutions - UNHCR, UNHCHR and the UN itself, and regional groupings such as the EU - to provide an opportunity for ongoing study and independent advice as well as expert practical professional development facilities. Last September we signed a Memorandum of Understanding with the UNHCR and we work closely with them in setting up and running our world Conferences and local seminars and Colloquia on topical issues. In Delhi I chaired the session which adopted a Declaration of the Judicial Symposium on Refugee Protection - this was not only attended by Indian Judiciary and others but the present Chief Justice of Bangladesh and judges from Nepal and Sri Lanka.
[17] Since our first Conference in London which brought 27 countries together and was chaired by Sir John Laws have come a long way. We now have over 300 members from 53 countries have had two more Conferences, in Nijmegen and Ottawa and numerous seminars on Refugee law generally and local issues and specific topics held in London, CapeTown and Kampala.
[18] We have Working Parties sitting constantly which address matters which are of ongoing general concern such as Vulnerable groups of refugees and Human Rights and Procedures but also particular topics such as Internal Relocation.
[19] Coming up in our calendar is a Seminar in Dar es Salaam, another in Southern Africa, one in Sweden. We are actively working on establishing a data base of important decisions from countries the world over to be available to everyone.
[20] We have developed a Workshop Manual for judges new to this Jurisdiction which has been used in or for judges from least 10 countries in Eastern and Central Europe, the Philippines and Japan. The next stage is to train up people to do the training themselves.
[21] After 50 years the Convention is still alive. It is kept so by countries such as your own - both NZ and Australia who - perhaps along with Canada have led the development of the jurisprudence in this field. Where better to see how what you all did 10 years ago has come full circle in recent judgment of the House of Lords of the UK in Shah and Islam and the Court of Appeal in Karanakaran. John Laws, Stephen Sedley, Simon Brown all have been closely involved with the IARLJ since its inception, now 5 years ago and more.
[22] I am delighted that you also have led once again in the formation of Regional Chapter. Such a move allows a greater flexibility to the Association. At one level we can study the world issues at another we can focus on regional matters which may or may not be of immediate concern to others. At the next IARLJ international conference in Bern in October we shall devote two hours for Regions to meet and discuss and compare notes - we hope in such a way that those who wish to can move from one to another.
[23] It is reassuring to me personally as well to have had the privilege to work with others who clearly have the same vision. Indeed it a case of taking the flood and I am sure the Association will as a result move on to greater things.
[24] Thank you for the honour of inviting me and allowing me to address you. Thank you also one and all for your hospitality particularly Sue Zelinka in Australia and Allan Mackey in New Zealand.
[25] In some small
return may I please be allowed to present to you Chief Justice and copies
of the Papers presented at each of our three Conferences.
Thank you
23 February 2000