The current wave of hopefully democratically driven changes in North Africa could, in the short to medium term, open up possibilities for comprehensive asylum laws.
As I noted in the opening plenary session of the just concluded assembly of refugee law judges in Slovenia, this could provide the occasion for a general overview of the prevailing situation, ranging from the application or otherwise of the Cotonou, Dublin and Geneva Conventions or Agreements – which should cover a variety of situations – to the determination of status preferably in nearby countries on the same continent, and that with whatever assistance – including financial – may be needed from the UNHCR, the EU, the AU or other countries and organisations, such as the International Association of Refugee Law Judges.
What is needed initially is UNHCR or UNHCR-assisted branch offices in the North African states. UNHCR has long had such an office in Cairo (where I myself served for three years), but its limited Libyan operation in Tripoli lacked government cooperation – or indeed recognition – so it was always difficult to get satisfactory or conclusive data from there in respect of applicants and appellants who claimed to have been to it. More recently, it was closed down altogether by the Gaddafi regime, which clearly also had more than a finger in human-trafficking operations from Africa to Europe. One African appellant told me in the presence of colleagues that there were three offices in Tripoli where you went to pay money (at $1,000 per person) to be put on a boat to Europe.
Being over-populated, Egypt would very rarely if ever agree to allow asylum-seekers to stay on in the country – apart from older settlers who were often stateless and elderly, and who had been there for many years. There were exceptions, such as several Libyans who had fled Libya following Gaddafi’s coup d’etat in September 1969, including the former prime minister under King Idris, Dr Bakkoush, who generally took care of assistance grants to Libyan refugees in need. However, at least it permitted the determination of status sur place and served as a transit point for repatriation or resettlement, and as an impartial monitor of ongoing developments. That was the role generally adopted by Malta until 2001, mainly through the Emigrants Commission working with UNHCR (as in the case of hundreds of mostly Christian Iraqis who came here following the Gulf War, for instance).
If such offices existed in other North African countries, including Libya, a follow up towards some kind of permanent solution could originate directly from there, following the determination of status in line with Convention requirements, primarily a well-founded fear of persecution. Governments could also have a better idea of who’s who and what in their own countries, so that both protection (where necessary and applicable) as well as legality (as opposed to chaos) would stand a better chance. The rights of bona fide refugees remain sacrosanct, wherever these refugees may end up.
While restricting or doing away with often risky sea voyages, these status determination avenues could also facilitate re-entry agreements, in justly rejected cases, through diplomatic representation on the ground, the more so in countries considered to be relatively safe in Africa and the Near East.
In 2001, shortly before joining the EU, tiny ex-colonial Malta waived its opt-out restricting its commitment to asylum-seekers from Europe under the 1951 Geneva Convention, and took on board the full implications resulting from the subsequent New York protocol of 1967 to cater for new – even mass exodus – post-colonial situations, in other words, consenting to consider asylum-seekers in Malta from all over the world. What North African countries could undertake to do, once they have been hopefully democratised and stabilised, is to regularise the determination of status under their own wings, ideally in consultation with UNHCR, at least with regard to their own hinterlands. Some countries, such as Kenya, are already bearing a very heavy burden, especially because of the situation in Somalia.
In my view, the Arab League could be very helpful in assisting or directing such a new orientation and vision, initially in the liberated North African states.
Such countries would not be hamstrung by outrageous EU instruments such as the so-called Dublin Convention, which expects peripheral countries on Europe’s southern or south-eastern shores, however small, exposed or over-populated, to be saddled with often illegal immigrants, alias asylum-seekers, indefinitely. In spite of all the deficiencies and critiques very prominently aired in the local press, tiny Malta holds the world record in granting some form of protection to immigrants who disembark here and ask for asylum. Burden-sharing within the EU has been patchy and generally miserly, with the USA taking many more cases than Europe, as the UNHCR Director of International Protection, Volker Turk, readily and correctly noted.
As we have seen again of late, so far locally resident “asylum-seekers” comprise many who, conveniently housed and fed, seem to have no interest in integrating at all in the confined insular spaces, bursting at the seams, wherein they find themselves and from which they can hardly budge.
European countries with an imperial past – Malta and Cyprus are not among them – have an added obligation to invest in the democratisation and stabilisation of North African countries wherever possible, even in their own interest. But it would be wrong of African states to expect Europeans to “do it for them”. Their peoples have shown immense courage, determination and ability in the dramatic events that we have seen unfold this year, and are keen to take charge of their own destinies in freedom and responsibility.
Consultation and cooperation could ensure a greater respect for humanitarian needs and, above all, could internalise basic human rights concepts under the rule of law in countries where these have not been much in evidence in the past decades, either under European colonialism or under national post-colonial dictatorships.
Professor Frendo, who
worked for UNHCR in Europe, Africa and Asia, has chaired Malta’s refugee appeals tribunal since its inception in 2001.