How Important Rule of Law is in Making Solutions Sustainable

Morten Kjaerum1RWI’s director Morten Kjaerum spoke in Geneva on Wednesday at the UNHCR’s eight annual High Commissioner’s Dialogue on Protection Challenges. The theme of the event this year was: Understanding and addressing root causes of displacement.

 Below you can read the full text of Kjaerum’s speech.

Geneva, 15.12.2015


Adj. Prof. Morten Kjaerum, Director, Raoul Wallenberg Institute of Human Rights and Humanitarian Law.

“Thank you very much for the invitation to participate in this important panel. To put the challenges bluntly: it could be said that the exact opposite of a human rights based and rule of law governed refugee protection system leads to the situation that millions of refugees across the world are confronted with today.

“For many, the only option to obtain protection is to turn to human smugglers and embark on extremely risky and life threatening journeys. The subsequent asylum procedures may not live up to the most basic rule of law requirements, but are characterised by long periods of detention, weak legal representation and illusory appeal procedures. Furthermore, life in the country of asylum can easily marginalise people, or worse, put them in very vulnerable situations of exploitation on the black labour market. For others, it may be a life in passivity only receiving care and maintenance.

“Based on the international human rights framework, the SDG’s now offer good guidance for a global change towards a human rights and rule of law based migration policy. The target in SDG 10.6 is to “facilitate orderly, safe, regular and responsible migration and mobility of people, including through the implementation of planned and well-managed migration policies.” Together with a few of the targets in SDG 16 on rule of law we have a useful framework to work on a stronger protection paradigm. A paradigm that may contribute to disentangling some of the protracted refugee situations.

“The very nature of a system which is based on the rule of law means it adheres to certain fixed structures and systems governed by a transparent legal framework with institutions to address different aspects of the life of the refugee. This helps tremendously to uphold refugees’ resilience because they are offered a framework within which they can take better charge of their lives. If the right to work and other basic rights are complied with, self-reliance may be a reality. People rapidly become broken when they survive only at the mercy of others, as nice and well-meaning as these people may be.”

“In several of the more protracted refugee situations, the UNHCR has in collaboration with partners like the International Rescue Committee developed rule of law based systems. For example, the process at the refugee camps on the Thai/Burma border aims to clarity and create consistency in the informal justice system there. For the Thai authorities, it is a chance to become an active part of the judicial process in the camps and bring them into conformity with Thai law. The mistrust and animosities on both sides are addressed in the process. In this way the two communities gradually come closer to establishing a more sustainable interaction.

“When developing a rule of law based refugee community there is an obvious task for the National Human Rights Institution in the host country. Among other tasks, the NI can provide legal aid but also train and engage the refugees in becoming paralegals. If the community is large a self-standing, a human Rights body could be established. The Raoul Wallenberg Institute is currently developing a master program for Syrian refugees in Turkey and Jordan in Human Rights and Conflict Resolution. We hope to engage some of the exiled law professors in the program.

“A high level of accountability is a key component in a rule of law-based system. For that reason it is important not only to deal with classical legal disputes and criminal law issues but also the day-to-day governance. One element that in particular stands out is the high level of corruption often surrounding refugee situations. The widespread corruption erodes basic human rights like access to health and education but also the possibilities of having a fair judicial system or any sustainable development of the refugee community. So, the accountability structures and anti-corruption strategies need to be enhanced in order to bring about lasting changes.

“So where does this bring us in relation to the protracted refugee situations around the globe? There are at least three potential gains from a stronger rule of law based refugee protection system.

“Firstly and most importantly, the refugees have a better possibility of becoming resilient and maintaining that resilience, which is a pre-condition for change.

“Secondly, a stronger trust and engagement can develop as was indicated in the Thai example between the refugees and the local community. In this way it may merge into and become part of the receiving state.

“Thirdly, more normalised systems can make it easier to resettle refugees in other countries. This can contribute to easing the protracted nature of the situation. Legal resettlement or expanded legal avenues, as key mechanisms in any refugee situation, can be considered a rule of law-based approach. This is in sharp contrast to the realities today where human smuggling and exploitation is the norm for many.

“In conclusion, I want to stress that the days are long gone – if they ever existed – where problems were distinct and solved exclusively with one set of legal standards; be it international humanitarian law, refugee law, human rights, or rule of law. All these elements are interrelated and interdependent also in refugee situations. We need to use our toolbox to the fullest extent. Only in that way, can we develop further the approaches to refugee protection.”

Share with your friends