Speech at the 9th International Association of Refugee Law Judges World Conference

Bled, 7.9.2011  |  speech

Opening Speech by Dr Danilo Türk, Predsident of the Republic of Slovenia, at the 9th International Association of Refugee Law Judges (IARLJ) World Conference "Between Border Control, Security Concerns and International Protection: A Judicial Perspective"
Bled, 7 September 2011


(In Slovenian:) Dear Mr Sebastiaan de Groot, President of the International Association of Refugee Law Judges,
Dear panelists,
Distinguished guests,
Ladies and Gentlemen,

May I please first welcome you in my mother tongue, the Slovene language, and then say a few words on the occasion of today's opening in the English language, considering that this is the language of communication, and will be the language used during this conference.

(In English:) In accordance with our rules and traditions I only expressed a few words of welcome in my mother tongue, in Slovene language, and I would like to welcome you all in English as the language of this conference and express my great satisfaction to be here with you this afternoon, to share with you some thoughts and to be particularly pleased to have found one of my namesakes on the same panel. This has happened before in legal conferences, but not since I became President of Slovenia. So this is in a way a special occasion for me and I am very glad that this occasion has been given to me this afternoon.

On a more serious note, I am very pleased that we in Slovenia are hosting this conference of the International Association of Refugee Law Judges. This conference is addressing an issue or series of issues, which belong at the same time to the most urgent international and human problems, and which involve some of the most sophisticated instruments that human society has ever developed – international law, administrative law, refugee law and the law of human rights. Obviously, in a meeting like this it's impossible to start a discussion without at least a general reference to human rights – those human rights, principles, which should govern the entire legal development, the legislation, the jurisprudence and the administrative processes, which involve the application of law.

The right to freedom of movement belongs to fundamental human rights. It is fundamental, but it is not without limitations, as you very well know. It includes the right to leave any country and to return to one's own country, but it does not, as a matter of principle, allow a free entry into a third country. So there has been a problem from the very beginning of the international legislation in the field of human rights, a problem, which has given rise to debates. These debates continue to be important, they continue to be dramatic and they continue to require a great deal of legal sophistication. What is the worth of the right to freedom of movement, when there is nowhere to go? Obviously for many people this doesn't represent a problem, but for many other people it does and for them that is a dramatic problem.

State sovereignty is another basic legal concept, which comes into the picture very early. It is clear that when it comes to the questions of entry of foreigners states remain sovereign. They remain sovereign individually and collectively. That interplay between state sovereignty and human rights is an important point of departure for seeking a balance – a balance between two needs, which have to be brought together in a harmonious way, if possible, in order to allow people to exercise their rights to the maximum. States have to cooperate in this respect and they ideally should always keep in mind the need for burden sharing. And from the idea of burden sharing, another number of important consequences will follow.

All these are very well known fundamental elements of any discussion on refugees, on refugee law and on practical issues that accompany refugee issues and refugee law. These are old problems. By way of example I could quote Immanuel Kant and his great treatise on Perpetual Peace, where he paid attention to the question of the status of foreigners in a country. His idea was a republican government, a government based on the rule of law. In such a country, governed by the rule of law, a foreigner must not be treated in a hostile manner, according to Kant, and the inhabitants of the country should treat that person humanely. They could expel such a person only if this does not produce harm for the person in question.

Of course, this is a very vague translation from a philosophical discussion, which nevertheless involves all the basic legal ingredients – human dignity, a very important basic concept prevailing throughout the whole code of human rights, non-discrimination, a very important legal principle applicable to human rights and to many other relations among human beings, and obviously, national treatment, which may become a solution in certain situations, but not in all.

Of these three fundamental legal concepts it's important, in my opinion, in my understanding, to apply the principle of non-discrimination with great care and sophistication. This is precisely where the role of judges is so central. Every judge knows that there is no easy way of applying the principle of non-discrimination in specific cases. Non-discrimination always meets a comparison with reasonable differentiation. No two cases are exactly the same and therefore automaticity is extremely hard to achieve. Therefore it is important to find a fine line between reasonable differentiation, which is necessary to do justice to individual cases, and prohibited discrimination, which is fundamental in order to allow people to enjoy equal status in comparable situations.

Obviously this basic legal framework is subject to specific legal norms and procedures, which will be discussed at your conference. I hope, I'm convinced that you are to make progress in that regard – issues such as the question of access to procedures of immigration in case of refugee situations, questions of legal representation of asylum seeker, the application of exclusion clause, question of proportionality in situations where security concerns require a certain restriction on freedom of movement and the right to seek asylum, the question of terrorism and how does legitimate combat of terrorism apply to the questions of migration without harming human rights, at least without harming them unnecessarily or disproportionately.

These are all legal questions, which you will discuss. I do not pretend to be able to enter into that discussion in any detailed manner, but I would like to point out that there is another aspect of the problem of refugees, which also has to be kept in mind. That is the question of the massive refugee situations around the world. Over the years the world has became used to figures, which go into tens of millions of people, who find themselves in a refugee situations. In addition to that, the international community has started to address the question of internally displaced persons in a more serious way than was the case previously.

With the type of armed conflicts, which we have seen in the last two decades, the number of internally displaced people has increased and it is likely to stay high. To that one would need to add the situations resulting from famines, or from other disasters, which do not necessarily have the character of armed conflict or which may perhaps be witness to a combination of factors, those relating to natural causes and others relating to war. All these situations have created a massive phenomenon of refugees and internally displaced persons, where one could argue that legal instruments will not suffice or that legal instruments would not be appropriate do deal with the actual problem at hand and would certainly not be a priority. Of course, one has to be very careful with this kind of reasoning, because there are fundamental principles of refugee law, which have to be applied in all situations, irrespective of their massive character.

Here, I am referring to the principle of non-refoulement, which is fundamental and which has to be upheld in all situations. I have worked for the United Nations at the time of severe refugee crises. I've worked in the political segment of the United Nations and I can testify that the Secretary-General's view has always been the following: let us start a discussion on refugee issues from the standpoint of humanitarian need and the need to uphold the principle of non-refoulement. In every situation when new refugee flow started, the principle of non-refoulement had to be brought into the picture.

This principle is applicable in the kind of situations, which we now see in parts of Europe, especially in Mediterranean. We have to be aware of the importance of those fundamentals: humanitarian need and non-refoulement. Last year the European Union member states received 243.000 applications for asylum, if my figures are correct, and that constituted about 29% of all applications in global terms. This looks like a big figure, something that is exceedingly difficult to manage in a legally proper manner. But then, if one compares that figure with the fact that in South Africa alone 180.000 applications were received at the same time, one should understand that Europe is affected, but that Europe is only part of a much larger world and that others are affected too. This it is important and we have to do our utmost and not seek excuse through a reference to large numbers.

We in Slovenia, obviously, also have an experience in that regard. At the time of war in Bosnia and Herzegovina in early 1990s we have received about 100.000 refugees in a very short period of time. In a country of 2 million people 100.000 refugees is a large number. We know that these proportions can be even more dramatic and are more dramatic in some other parts of the world, but as Europeans we sometimes feel somewhat surprised when we see much smaller numbers affecting countries, which are much larger than Slovenia. We are being told that this kind of sheer pressure of numbers makes the refugee management very difficult. The application of the entire range of norms, which apply in refugee situations are interpreted as almost impossible.

We hear this argument as well. We have to be careful about it and we have to find ways of dealing with it. This is an area where the role of judges becomes very important. Of course, one has to be imaginative in thinking of various ways in which judges work. One of them is conferences like this. Conferences can pronounce policy advice, they can pronounce a position of principle on various issues, they can provide specific guidance to legal interpretations. Judges adjudicate in specific cases but in addition to that they can also provide policy advice to governments and this is something to think about at a conference like yours. I'm not sufficiently familiar with your work to know what exactly is the mix of different elements of your output. But in any case, I think one has to see all these dimensions. In other words – positions of principle, legal interpretation and policy advice.

When one talks about legal interpretation and the use of legal instruments, including courts of law in Europe, one could see that there is a need for a discussion and for further practical work. I am very glad that our minister of justice in his welcome remarks referred to jurisprudence of the European Court of Human Rights and I hope that in the course of this conference this jurisprudence will be discussed further.

Let me add just one additional point, i.e. that in Europe the European Court of Justice, the Luxembourg court, should also be brought into the picture. The question is, how and in what combination with the national courts. Shouldn't the national courts be encouraged to seek guidance from the European Court of Justice more often or should there be a process that brings all these mechanisms, all the judiciary into a more dynamic motion? Maybe this is the way to go forward. I certainly do not claim to have the necessary expertise to give a specific and definitive answer. But what I believe is that in the kind of European situation that we nowadays see, with the kind of discussions about the European asylum procedures that we currently have, with the kind of discussions we hear about the future of the Schengen system, we clearly need a more dynamic, a more effective involvement of courts of law at all levels.

Ladies and Gentlemen,

I have referred to some aspects of the problem, which is large and complex, which you are dealing with in a sophisticated way. I would like to conclude with a thought which is resulting from the fact that since many decades we are in a world where territorial sovereignty alone cannot solve the problems of movement of people. This has been the case for decades now. Legal instruments have evolved, but not always with the pace, which would be adequate to deal with all the problems.

So what is needed is international solidarity, which has to be expressed not only as a political principle, not only as a fundamental principle, which should govern the exercise of sovereignty of individual states, but which also has to find its expression as a legal principle to be applied by various courts of law – national courts and European courts of law. It would be, as I said, very good and very interesting if the European Court of Justice could be brought into the picture often and effectively and if the entire range of courts would play a creative role and which would be sophisticated as jurisprudence normally is.

Only that way one could say that the basic principles of human rights, which are embodied in the freedom of movement and other human rights norms and principles, are held in accordance with the needs of our time and only then we would be able to say that the lofty and general words of Immanuel Kant of more than two centuries ago have found a proper expression in contemporary practice. But obviously, contemporary practice is your work. We in Slovenia we are happy to be your hosts. We hope you will make a contribution to the fulfilment of one of the important and most urgent tasks of our time and I will be very happy to look at your results. I wish you every success in your work and a very pleasant stay here in Slovenia. Thank you very much.