New Approaches to Asylum: Reconciling Individual Rights and State Interests

The international refugee protection system, which was set up in the wake of the Second World War, has been showing signs of strain for some time now. Some say that it is ill-suited to meet today's challenges, especially those posed by globalization. In a world in which information, capital, goods, and services flow ever more freely across borders, the uncontrolled movement of people is increasingly seen as a threat to the sovereignty of states. Sadly, in an age of global terrorism, it is also seen as a security risk. When the contemporary refugee regime was established, it was predicated on the willingness of states to relinquish a certain amount of sovereignty, in order to ensure that the basic human rights of a specific category of threatened individuals--refugees--would always be protected. On December 14, 1950, the UN General Assembly adopted Resolution 428 (V) establishing the Office of the UN High Commissioner for Refugees (UNHCR), and giving it a mandate to operate on the territory of sovereign states on behalf of an especially vulnerable group of non-citizens--refugees. Just six months later, the 1951 Convention relating to the Status of Refugees was adopted. It established an obligation for states to protect refugees from being returned to situations of danger and to grant them a certain basket of rights normally reserved for citizens. The willingness of states to agree to this visionary system was in part a recognition that their performance in 1938 at the Evian Conference, and subsequently in turning back Jews trying to escape Nazi Germany, should never be repeated. But it was no doubt also a sign of how little they could imagine the complexity which refugee problems would acquire. In 1951, refugee problems indeed seemed limited in nature and in scope. As a result, the UNHCR was initially given just a three-year mandate. The agency was tasked with finding new homes for around 1.3 million refugees remaining from the Second World War, and would then be dissolved. After that first three-year period, the General Assembly renewed UNHCR's mandate every five years until just a few months ago, in December 2003, it finally lifted altogether the time limitation on UNHCR's mandate, a sobering recognition of the apparent permanence of the world's refugee problems. Today, countries in both the developing and the developed world are expressing growing dissatisfaction with the international refugee system and are looking for new approaches to refugee problems. The reasons for this dissatisfaction are different in the North and in the South, but the implications are strikingly similar: the rights of refugees and asylum seekers will increasingly be jeopardized, unless ways of addressing states' concerns can be found. In the developing countries, which host the overwhelming majority of the world's refugees, the threat to asylum arises from the large number of protracted refugee situations (70 per cent of the world's refugees have been in exile for more than five years, according to the UNHCR), the absence of durable solutions, the limited capacity of host states to meet refugees' needs, and inadequate burden sharing on the part of the wealthy countries. This is coupled with real or perceived linkages between the presence of refugees and threats to national or regional security, and the rising xenophobia which accompanies all of the above. In the industrialized world, the strains on the system are caused by irregular migration, the risk it is seen to pose to the security of states and communities, and the abuse or misuse of asylum channels. States lament the high cost of maintaining individual refugee status determination mechanisms, the failure of the many restrictive measures they have crafted to produce the desired results, and the related growth of people smuggling and trafficking. Industrialized countries also face serious difficulties, both practical and legal, in removing persons they find not to be in need of protection. …

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