[note: Carola Eyber's questions are all in bold print]
I think that we need to start with very basic questions, so I will start by asking you what or who is a refugee?
The critical distinction is that between a refugee and a migrant. A migrant is someone who chooses to move because she wants a better life, more opportunities for her children, or otherwise to live in a different place. The fundamental distinction between that and a refugee is that a refugee is a person who really is forced to move by circumstances normally beyond his or her control or human rights abuse or other forms of disaster that make it impossible for the person meaningfully to be protected in their own country. The idea of the refugee system, unlike the migration system, is that people who truly face extremely serious forms of harm should be able to get out of their own country and be safe and be treated with dignity until it is possible for them to go home in safety. So the goal of refugee law isn’t to facilitate migration as such. Migration is a means to an end. For refugees, in other words, they needn’t come to an asylum country like South Africa forever, but they need to come and be protected so long as it’s impossible for them to go home.
Who defines what a refugee is? Is there something that all countries accept? How does one determine who qualifies as a refugee?
In South Africa’s case there are two kinds of international obligations. First, South Africa has signed on to the United Nations Convention which about 130 countries have agreed to abide by. Secondly, it’s also signed an important convention of the Organization of African Unity which effectively extends that definition to a broader class of refugees. So South Africa is party now to two important international conventions that define who it considers to be a refugee and which are binding upon it.
Is there debate or controversy about how one defines a refugee?
I think there is debate around the edges. The basic notion that it involves the risk of unacceptable harms is agreed to by virtually all. The idea that a refugee is a person who’s own State either cannot or will not protect them, is generally accepted. The differences really flow from the fact that the United Nations Convention says that only persons at risk by reason of one of five factors (their race, religion, nationality, social group or political opinion) qualify, whereas the African definition is broader. It includes, for example, refugees in flight from broad scale violence or war, whether or not they can link the risk fear to one of those five grounds. And so to that extent African legal standards are ahead of the rest of the world and have been for some time.
Could you clarify the difference between a refugee and an asylum seeker?
An asylum seeker is really not a legal term. It is something that is used colloquially. It suggests a person who has asked to be recognized as a refugee but who has yet to be declared a refugee by the asylum country. In fact, the reason that I say it’s an artificial term is that under international law, a person is a refugee as soon as they meet the requirements of the definition, whether or not any government has declared them to be a refugee. So, as soon as a person who genuinely is at risk of serious human rights abuse leaves his or her own State, by and large that person is a refugee as of the moment that they leave their own country, whether or not they have gone through a formal status determination procedure. It’s an important distinction because the critical right of refugees is what is referred to as "non-refoulment", which means the right not to be sent back to the place of danger. If it were the case that an individual only acquired that right once a state had actually put them through a formal procedure, you could very easily see a situation where governments would simply refuse ever to ask the question so that they would never be saddled with the obligation of protecting the refugee. And so the way international law is structured gives the refugee certain key rights as soon as they in fact are outside their own country for a relevant reason whether or not any particular government has recognized that status.
What other obligations does international law have in terms of the rights of asylum seekers and refugees?
Well, it’s a pretty standard catalogue in one sense. The key one I’ve mentioned, the right not to be sent back so long as the risk persists in your own country. That is the most fundamental right. Beyond that there is a list of basic civil rights, such as freedom of movement that are included. There are some important socio-economic rights; the idea being that the drafters of the Convention didn’t want refugees to be a burden upon their asylum state. They wanted refugees to be effectively self-sufficient by being in a position to work, for example, and to earn their own living. There are also a number of rights that speak to the solutions to refugeehood, either the ability ultimately to repatriate or to be resettled in other state or to stay in the country of asylum so long as the risk goes on.
Now I think we can turn to the refugee protection model advocated in the Green Paper. Would like you to explain the basic ideas behind this model?
If I could give you the backdrop to this, it is often the case that advocates for refugees feel very, very frustrated that it is so difficult in so many countries of the world for refugees either to get in or to be adequately protected. Simultaneously, a lot of governments are upset that many who claim refugee status are in fact migrants, who, in other words, are not in need of protection, who are abusing the system. I think there has been what the French would call a dialogue of the deaf; two sides speaking, really neither one listening to the other. The result has been a virtual collapse of the asylum system in much of the world. Governments don’t want to deny desperate people access to protection, but they fear abuse, they fear the costs, etc. Advocates understand that concern, yet feel obliged always to fight the good fight on behalf of their clients. In the international initiative on reconceptualizing refugee protection, we brought together well over 100 people from all parts of the world, including Africa, for a series of meetings. They included the lawyers and the social scientists who had worked with refugees in the field for many years. Then we brought in government officials from a variety of states, including the Netherlands, Tanzania, the Philippines, who had relatively good records of refugee protection historically. The Non-Governmental groups joined in, the inter-governmental organizations came in at a later stage. Individuals from all of these different backgrounds and from all parts of the world worked together in small workshops on concrete proposals. We all agreed that refugee status had to be revitalized but weren’t agreed initially on how to go about it. So our first discussion was really "what’s the problem?". We came to two conclusions. First, there is a perception that refugee procedures amount to an uncontrolled backdoor route to permanent immigration and governments are not going to accept that. Secondly, the real costs associated with the arrival of refugees aren’t fairly shared out among governments. The southern hemisphere hosts about 85% of the world’s refugees with about 10% of the resources. So long as that situation persisted, whatever country a refugee arrived at had to take on all of the responsibility for those refugees. You can just imagine Tanzania with a million or so refugees within a matter of days had complete responsibility under law for that group. No one else had a duty to share anything. So it wasn’t surprising that they ultimately closed the door. Our goal was to get away from the backdoor to permanent immigration problem and the inequitable allocation of costs and yet not to shy away from the importance of both an open door to genuine refugees and quality protection for refugees until and unless the harm in their own country subsides.
How do these ideas relate to the basic principles of the Green Paper?
In two ways. One is the Green Paper clearly makes the point that refugee protection is not about immigration, these are two different questions. Immigration is an important issue but it is not the same issue as refugee protection. Refugee protection is a human rights issue, not a migration issue. The Green Paper also tries to anchor the South African system in the basic commitment of International Refugee Law, which is to ensure that anyone who travels to South Africa and who meets the definition, honestly is protected, in dignity, so long as the harm in their own country continues. But it does, unlike many northern countries, insist that refugee status ought normally to be about protection for the duration of the risk. In other words, it’s not a backdoor to permanent immigration. If it’s possible within a reasonable number of years to go home in both safety and in dignity, they should do so. The idea is that this would therefore give the South African government the confidence to remain open to real refugees without worrying that by admitting refugees they were effectively creating a backdoor immigration system. The other key piece of the Green Paper is a commitment to try and share refugee protection responsibilities, particularly with the partner states in SADC, the Southern African Development Community, to work together with those other governments to apportion the duty to protect refugees and to share the resources needed to protect refugees throughout the region. And indeed to bring resources into the region from outside states, particularly in the north to make it possible for governments here to do what needs to be done for refugees without sacrificing the legitimate expectations of Southern African citizens and others for progress in their own socio-economic rights and opportunities. So it’s that balancing between respect for the right of refugees and yet understanding that the South African population legitimately expects improvement in its own conditions and that refugees ought not to be used as a pretext in any way, shape or form to detract from movement forward on the rights of South Africans.
Some critics of the Green Paper have suggested that the model proposed is an imported model which applies to western countries but is not applicable in a situation such as South Africa. How would you respond to that?
It’s interesting because in the north, one hears exactly the opposite criticism i.e. this is a lovely model that draws heavily on experience in the south, but does it have anything at all to offer Europe or North America? The truth is that it really does try to strike that balance. Most of the researchers who worked on the project are themselves either from the south or have worked extensively in the south, Latin America, Asia or Africa. Most of the case studies that went into devising the model were in fact from the south and particularly from Africa. There were African academics, African governments and others involved in this process throughout and so there is no sense a bias towards the north. Indeed, if anything it’s a model that makes more intuitive sense in the south because this is the region that, to my mind, has borne the unfair share of the refugee burden historically and which would receive much greater support from the rest of the world under this proposal than has traditionally been the case.
I want to turn now to some of the concrete proposals within the Green Paper and I would like to start with the concept of temporary protection. Could you explain this to us?
For many, many years temporary protection was something that in fact happened predominantly in Africa whereas the states of the north often tend to equate refugee status to permanent residency for their own reasons. They needed labour, there was political value in it, most refugees historically were coming from the north to the north, they were immigration societies and they tended to assimilate the two. Historically in Africa, that wasn’t the case. Refugees during the 50s, 60s, and 70s were fairly generously admitted to other African states but it was always understood that they were being admitted so long as the risk continued in their own country. Virtually no African government ever agreed to treat refugees as permanent immigrants and so this where the idea of temporary protection evolved in this continent. Unfortunately, however, in the last 5 years, European states confronted with refugees from Bosnia, decided to take that label and turn it into something, quite awful. It was an excuse to treat refugees other than as is required under international law, for example to marginalize them economically, to deny them family reunification and other basic rights. To give states, in other words, more power over the Bosnian refugees than they had traditionally enjoyed in relation to other refugee flows.
And so the label, temporary protection, went from being a description of something very positive and rights regarding in much of Africa to being something often seen as quite negative in many European countries. When I advised the Green Paper Task Team, I suggested and they agreed that it really did make sense to return to the historical African tradition of protection for the duration of the risk under its historical label of "temporary protection". Both the UNHCR and some NGOs have confused the reference to temporary protection that has been occurring in Europe. If one actually reads the Green Paper, you will see it’s nothing of the sort. The Green Paper’s commitment to honouring all of the basic human rights of refugees, both those that follow from refugee law, from other treaties that South Africa has signed and indeed from its own constitution, is absolutely, unequivocally protected by what is proposed in the Green Paper. It couldn’t be farther away from what is happening in Europe.
There are initiatives set out in the Green Paper that would indeed make temporary protection an invigorating experience that would assist refugees to acquire the kinds of skills that would make it possible for them to repatriate in dignity when it’s safe to go home. It’s a very solution oriented, forward looking system that’s being proposed that really has no counterpart in any part of current northern temporary protection practices. In fact, I would go so far as to say that what’s happening in the north is not temporary protection; it’s temporary, but there’s not a whole lot of protection in it. What is being proposed in this Green Paper is, in contrast, very solid in its rights regarding commitment to protection so long as it’s unsafe to go home.
The UNHCR has suggested that we should be talking asylum and refugee protection as opposed to temporary protection. What exactly are the differences between those things?
In fact there is no difference. They are quite right that if you go back to basics the Refugee Convention only requires that individuals be protected in dignity for the duration of the risk. So they are quite right. One could simply refer to refugee protection or asylum, but here is where the problems come in because historically in the north, those terms have been associated with this idea that refugee status leads to immigration. Whichever label you use, it seems to me, brings in a whole lot of baggage that has very little to do with the current context in South Africa. What we need to do is to get away from semantic debates and to talk about substance. What do South Africans honestly think? Do they believe that it makes sense for refugees to come to South Africa, to have the right to get in, to be securely protected so long as the harm persists or do they want a system, as some NGOs have suggested, that does what the Europeans and North Americans historically did, which is to say, everyone who is a refugee is automatically from day one a permanent immigrant. My sense is that that latter option is not a realistic one. South Africa’s geopolitical position is more vulnerable than that of north American states. Historically it has hosted larger groups of refugees. There is the potential of course for refugee flows in the region again. South Africa’s relative security and prosperity make it an attractive place for people to seek protection. The Green Paper Team tried to balance the need for refugees to be protected with the view that South Africans have a legitimate right not to see the protection system become a backdoor route to permanent immigration. That’s a compromise that refugee advocates need to embrace because only by embracing it, do we come up with the kind of political compromise that’s sustainable, that will withstand the challenge of the next refugee flow in the region and should be around for generations of refugees to come.
Some critics have voiced the opinion, however, that there may be refugees who need permanent protection as opposed to temporary protection. How do you respond to that?
They are quite right. One of the critical features of the Green Paper is a commitment that if after 5 years of the refugee arriving in this country, it is still not possible for them safely to return to their own country, South Africa will guarantee that individual permanent residency in this State. That’s an extraordinary commitment. It’s a halfway house between the North American/European practice of doing it immediately and the practice of many other African States of leaving people in so called temporary protection for what amounts to a 15-20-30 year limbo where they can never get on with their lives and become productive members of a society to which they honestly belong.
There are two background ideas here. One is, how long does it take for the kinds of problems that generate refugees typically to be resolved? The answer is that it takes all sorts of different time lines. But a United Nations study that dates back about 10 years suggested that in about half of the cases, the problem that gives rise to refugee status can be resolved within a 5 year time frame. Second, there is a whole series of studies by social scientists that suggest that refugees can, without any significant psycho-social harm, endure a period of temporary protection so long as it’s rights regarding and dignified for five years. So there is a nice coincidence of factors here. If temporary protection goes on for up to five years, South Africa should be able to regenerate a significant part of its asylum capacity which then makes room for another generation of refugees. Yet, by limiting it to five years, it ensures that people are never put in the position of sitting in legal limbo indefinitely and being unable to get on with their lives. In addition to the commitment to give permanent residency to refugees who can’t go home after five years, the Green Paper also suggests that there are some groups, for example torture victims, unaccompanied minors and others who require an immediate solution and it has committed itself to provide that to those special groups of persons.
In other words, permanent residence would be extended to those groups immediately upon arrival.
That’s right. Because to do otherwise would be inhumane. That’s an area where, for example, South Africa will find that countries outside the region would also be willing, quite immediately, to accept that share of responsibility. Historically, countries in Scandinavia, North America and elsewhere have always been willing, for example, to resettle unaccompanied minors or torture victims or paraplegics or others who perhaps require a level of medical or psychological service that would strain South African capacities given the needs of its own population right now. So the Green Paper speaks to that kind of a shared commitment and suggests that it is critical that South Africa pursue those kinds of links.
I want to return to the issue of the five year duration period of protection which is proposed in the Green Paper. I think that we need to clarify the situation because it has caused some concern amongst people, especially amongst refugees, who understood this to mean that they will be granted refuge in a safe country for a period of five years after which they will be repatriated involuntarily. Could you explain this?
Yes. This is a critical point because that perception is absolutely, unequivocally false. The premise of the Green Paper is that the basic rule in international law that says if and when things are safe, refugee status comes to an end would only be applied for up to five years. So, for example if at year 2, 3, or 4 of the individual’s presence in South Africa, there really has been a fundamental change of circumstance in the country of origin, that eradicates the need for protection and which truly is durable. Those are the tests, they are extremely stringent tests and they are endorsed by the Green Paper. If those tests are met, and only if those tests are met, repatriation would be pursued. But if at the five year point it still isn’t safe to go back, there would not only be no forced repatriation, but to the contrary, there would be an automatic right to receive permanent residency in South Africa.
To the extent that there is a concern out there in the community, it’s one that follows from a failure to appreciate just how significant that guarantee is that’s being offered by the Green Paper. It strikes a balance again. If the statistics are right, the hope would be that about half of the refugees could safely and in dignity go home within five years, yet it is clearly the case that probably about half of the refugees who arrive would be unable to do so. Those persons, if they are, for example, not able to secure a resettlement spot in a third state or otherwise find protection outside South Africa, would under the proposal as it’s framed here, have an automatic right to remain and to be a part of the South African community. To do otherwise would be inhumane. That’s an extraordinary commitment and I think it strikes exactly the right balance between being practical and being fair. That ought to be the goal of the process.
I think we need to go back a step here. Could you explain exactly what repatriation means and how the term has been used in international refugee law?
Repatriation is the idea of the refugee ultimately going back to their own country. The basic rule in international law is that so long as you remain a refugee, until and unless that fundamental change of circumstance occurs in your own country, you can only return on a voluntary basis. You cannot in other words, be forcibly returned to your own state. To do that is to violate the most central principle in international refugee law. On the other hand, you can cease to be a refugee. That occurs automatically under international law when there has been a fundamental change of circumstance. At that point, the individual is no longer a refugee. It makes sense. They have lost, to put it colloquially, their trump card on the migration control system. If the necessity is now gone, they are in the same position as any other would be immigrant to South Africa. The South African government then is in a position to require them to return to their own country. I think what’s important to add here is that a lot of governments talk about repatriation but it doesn’t work, or if it does work, it’s brutal. What’s really important about the Green Paper is that it commits itself to a process both of making repatriation a viable humane process when and if it's safe and of making it a practical process for both South Africa and the country to which the individual returns.
There are a lot of stories about how repatriation just doesn’t work. I think those stories are accurate. The question is why it didn’t work. Well in part it sometimes fails to work because refugees are debilitated during the period of temporary protection. A lot of countries stick them behind barbed wire, refuse to allow them to work, or to be educated or otherwise to continue to develop as human beings. After you have been in that situation for 5 or 10 years, as is the practice in some other countries, it is no wonder that it’s difficult for people to reestablish themselves in their own country. What is needed is a system of invigorated assistance that would promote refugee self-sufficiency and indeed links with their host communities through economic development funded externally. That would allow refugees to be contributing members of the South African economy while they are here and simultaneously develop the kinds of skills and resources that would make it possible for them to bring something new back when they return to their own country. There is also the need to really ensure linkages between the refugees and their own countries of origin. Let them go back to test the waters, safely knowing that they can come back to South Africa if things honestly aren’t safe or secure yet. Keep bridges alive between the populations that didn’t flee and those that did. Work with the communities in the country of origin when repatriation begins to ensure that refugees aren’t seen as a burden on them and that the refugees returning are seen both as welcome and as sources of enrichment to both socially and economically. There is a variety of things that have been done by other countries around the world, particularly the Scandinavian states, that have shown that repatriation can work, but it needs to be made to work and so that is very much a part of what is proposed here. A system that will not just talk about repatriation, but which has committed to it in a practical and humane way so that people have an inducement to go home. They don’t perceive that they are simply giving up something in South Africa, but rather there is something for them to return to in their own state.
In the Green Paper there is reference to mandated repatriation. It does say, however, in the OAU Convention that repatriation should always be voluntary. How do you respond to that?
The OAU Convention stipulates that so long as a person is a refugee there can be no mandated repatriation. It has always to be voluntary. That is the basic rule under international law as well. The OAU Convention though has no application once a person has ceased to be a refugee. It’s about the right of refugees. So we go back to this basic question: when does a person cease to be a refugee. Again, the short answer is, if and only if the human rights abuse or war that caused them to flee has in fact now been ended and the situation in the home state is durable and safe. If and when that occurs the person is not a refugee and no longer has rights under either the UN Convention or the Organization of African Unity Convention. But the OAU Convention simply reaffirms what is already the rule anyway in international law, that until and unless that moment arrives, the decision about whether or not to go home belongs to the refugee.
What other solutions to refugee protection are there except repatriation?
The obvious ones are either the individual remains in South Africa or ultimately resettles to a third state. Right at this moment, South Africa is in a position to benefit from enormous international good will on the latter front. Just to give you one example, there has been a recent policy paper issued in Canada that suggests that rather than just waiting for refugees to arrive at its borders, Canada will affirmatively go abroad into refugee producing regions and actually seek out affirmatively the refugees who really require a permanent solution through resettlement in Canada in a very vigorous way. To some extent, of course, this has always been done by the Americans, the Australians, New Zealanders and others. What we are seeing now is, if you will, the rise of an interest convergence where countries particularly in Africa and in Asia have been reluctant historically to give refugees permanent residency but have been relatively good about protecting them for the duration of risk. And where countries in the north see themselves as too far away and too culturally dissimilar from many refugees in the south, yet are willing to admit those who can’t safely go home as permanent immigrants. The idea here would be to try and draw on that mutuality of interest so that governments from outside the region would formally and legally commit themselves to working with South Africa and its partners in SADC to relieve the burden of protecting refugees beyond the five year point. That is absolutely doable particularly in this political moment.
I would like to focus on another concept proposed in the Green Paper and that is of collectivized protection in burden sharing. Could you explain this?
This goes back to this basic notion that international law as it’s presently framed is a bit schizophrenic. On the one hand the Refugee Convention starts off by proclaiming how good it is and how important it is that states around the world share responsibility to protect refugees. Then, when you read the fine print, it says "oh, and by the way, whatever state the refugee arrives at is completely legally responsible for all of that person’s protection needs and no one else owes that person or that community of refugees anything." And so you end up in the prisoners dilemma of a country like Tanzania with a million refugees arriving at its border in the space of a couple of days attempting to secure assistance from the rest of the international community to cope with that and no other country being under a duty to respond. Tanzania simply threw up its hands, closed its borders and said it couldn’t possibly cope. That I think is a tragic situation.
If governments are convinced that refugees who arrive at their borders are their responsibility and their responsibility only, there is a perverse logic to the closing of borders and forcing away of refugees that we are increasingly seeing in all parts of the world. But what if a government like Tanzania knew that just because of its geographical position it wasn’t going to be put in the position of responding to all of the refugees' needs on its own? What if there was both money arriving externally and a set of states within the region that would be prepared to share out the actual duty of providing temporary protection? What if there were states outside the region who would take on the duty of proving protection to the special needs cases that would arrive in the refugee population? The prospect of receiving the refugees would be much less threatening. There would, in other words, be enough of a security guarantee to enable countries to remain open to refugees. But this has to be binding. This has to be real. It can’t just be a promise and that historically has been the trouble. The countries talk the talk but they don’t walk the walk. When they actually have refugee flows arrive, they have unfortunately been put in the position of begging the developed states or the UNHCR to provide them with some assistance either in terms of money or in terms of providing places for the refugees. Often times that has simply not been forthcoming particularly if it’s in regions that the western world hasn’t seen as being high priority, political or strategic areas. What we are trying to do is to move away from that to provide governments with a system of sharing out both the burdens in dollar terms or rand terms and the responsibilities in human terms of refugee protection so that they can in confidence say "yes" when a refugee arrives at the border, knowing that if ultimately the numbers are too great or the costs are too high there is a guarantee, not a promise, that they will be helped.
Some critics have argued that the concept of collectivized protection may lead to a situation where states are likely to agree on the lowest common denominator of refugee rights as opposed to instituting a maximist rights regime.
That is certainly a risk. Those critics are looking largely at European practice where that has occurred. Let me make a couple of points. The system being proposed by the Green Paper Task Team starts from the premise that all of the rights codified in international law form the bedrock of the system. There would be no bargaining away of those rights. Secondly, it says that the decisions about both which groups qualify for refugee status and the extent to which refugee status can at some point, when it’s safe, be withdrawn would no longer be made behind closed doors in government bureaucracies but would be made around the table of states that are sharing protection responsibilities. The UNHCR and NGOs in the field would also sit at the table. And so it would open up the dialogue about both who qualifies and who no longer qualifies for refugee status.
Is this a guarantee that the standards will be better? Absolutely not. Let’s compare apples with apples here. The ground reality is that if governments want to be evil today, if they want to aspire to the lowest common denominator, it’s very easy to do. The statistics about what other governments do and how well they do it are readily available. Governments increasingly adopt negative practices unilaterally. So the idea that by collectivizing it, it necessarily will reduce things below where they would be if every state operated its own system is nonsensical. Governments have eyes and ears and they are quite capable, if they are badly intentioned, of adopting the worse practices from any other part of the world. We have seen that pattern lately in some parts of Africa where in West Africa, the example of the American mistreatment of Haitian boatpeople was cited as a justification for refusing landing of Liberians. So that’s the reality.
If you take both the potential for collectivized protection to open up the dialogue about who is and who isn’t a refugee by involving the UNHCR and NGOs in the process, if you consider that it will force states at least to put their reasoning on the table in an open forum rather than hiding behind secrecy, and most fundamentally if you consider the ground reality which is that if we don’t address this problem, governments are quite legitimately going to continue to do what Tanzania was forced to do, with disastrous consequences for refugees. We have to take the chance of moving toward collectivized protection.
Let me be clear on this. The Green Paper does not commit South Africa to doing refugee protection on a collectivized basis. It simply says that this is something to think about. It’s something to be open to. It’s something that should be negotiated both with SADC states and with other international partners. It says the new legislation should make provision for this kind of honest sharing where human rights law is the bedrock, but it doesn’t require South Africa to take that next step. That’s a dialogue that’s going to have to be worked through over a number of years. It’s not something that South Africa can do unilaterally. It will require work within SADC but that work has begun and it’s important. It’s important not only for refugees, but if I can take it another step, it’s important for geopolitical stability in the region. It’s a way of South Africa reaching out to the states that border it, which for so long protected many who were required to flee this country to support them in their hour of relative need, and thereby to promote it’s own stability by making South Africa part of a more stable sharing region. It’s consistent, in other words, with many of the economic and political initiatives that are already being taken within SADC.
The notions of collectivized protection and temporary protection seem to be referring to situations of mass influx of refugees. Is this applicable in a country like South Africa where we have not been witnessing this in the past few years?
Your question actually has the seeds of the answer in it, for the last few years you say. Historically, of course, South Africa has experienced significant inflows, as have its neighbours. I think it makes sense to be prepared for the possibility that powder kegs in a variety of countries in various parts of this continent may indeed give rise to significant refugee flows in the future. It doesn’t make any sense to close your eyes to that. The other side of the question is simply what is a mass influx? The Europeans thought that the arrival of the Bosnians in the tens of thousands was a mass influx. In Africa that could be seen as no more than a routine flow. Canada thought that 300 Sikhs in a life boat off the Atlantic seaboard was a mass influx and recalled parliament in order to pass special legislation that was really quite negative. My view of this is a simple one. If states see it as more than they are able to cope with, whether the number is 1000, 10,000, 100,000 or a million, when they see it as too much, it makes sense to allow them access to a forum where they can quickly, within a matter of hours, come to an understanding about sharing responsibility rather than slamming the door shut. In other words, the decision about what is and isn’t an unacceptably big inflow should be left to the government concerned. If they think it’s bad enough that they would be prepared to actually resist the arrival of refugees in the way that Tanzania did, it would be better to be able to convene this SADC or other group to talk through the problem and to apply standing formula for both burden and responsibility sharing that would have been worked out in advance by that group before the particular interests of its members were know in relation to a particular flow. The alternative is extremely dangerous to refugees. So limiting this to mass influx I think simply creates barriers to protection. If governments perceive it to be serious, let’s treat it as serious.
Thank you very much for the interview. Are there any final comments you would like to make?
I would just encourage South Africans, as they are considering which direction they want to take their refugee protection policies, to keep a couple of basic things in mind. First there is a critical distinction between a refugee and a migrant. This is not a question of admitting people forever, it’s a question of admitting people who have no choice but to flee. Secondly, as they consider how to implement that duty, South Africans should keep in mind that sometimes options that appear superficially to be extremely generous are in fact not terribly generous at all if they collapse under the weight of a future refugee flow and encourage governments to act either negatively or with too much discretion. It seems to me that the proposals of the Green Paper Task Team are revolutionary, they are pragmatic, and yet they are absolutely principled. They give South Africa an opportunity to do what governments around the world have been aspiring to do for some time, which is to reconcile their duties to refugees to the legitimate expectations of their own people. First and foremost take a look at what is really being proposed in the Green Paper, to think about it seriously and attempt not to abandon the importance of protection in the interests of coming up with a solution that avoids of difficulties. You can do both. You can protect refugees and your own population and that’s what this Green Paper tries to do.