The ‘Rule of Law’ is a sophisticated constitutional principle, crucial in many countries to the proper demarcation of the roles of national parliaments, the judiciary, and the executive structures. It is also, more broadly, a notion at the heart of national debates around certain of the more complex, multilateral issues confronting our modern world – terrorism, transnational crime, irregular migration and asylum among them.

If its importance is undisputed, in the experience of the Office of the United Nations High Commissioner for Refugees (UNHCR) its nuances and permutations are nevertheless many. In some of the societies where we work, conflict or human rights violations have rendered the rule of law very relative, to a point where the machinery of protection and of justice have lost their legitimacy, if they continue to exist at all. The rule of law has painstakingly to be reconstructed, institution by institution, law by law, capacity by capacity. In certain other more developed societies, particularly where security is driving the operation of asylum systems, the rights of refugees are moving to the periphery of the rule of law notion. International law standards may be applied very inconsistently within and between countries; arbitrary detention, not subject to judicial review, is leaving many asylum seekers in a sort of legal limbo; and the world of borders can be particularly immune – with interception, turnarounds and refoulement taking place outside the frame of proper scrutiny.

Georges Abi-Saab, Graduate Institute of International Studies, Geneva, Switzerland

T. Alexander Aleinikoff, Georgetown University Law Center, Washington DC, United States

Michael Alexander, International Rescue Committee, Thailand

Johnson Brahim, Government of Tanzania

Iain Cameron, Uppsala University, Sweden

Towa Chaiwila, Government of Zambia

B. S. Chimni, Jawaharlal Nehru University, India

Deirdre Clancy, Lawyers' Committee for Human Rights, New York, United States

Jean-Marie Cravero, Government of France

Alberto D'Alotto, Government of Argentina

Andrea Faberova, Government of the Czech Republic

Daouda Fall, Université Cheikh Anta Diop of Dakar, Senegal

Monica Farinha, Portuguese Refugee Council, Lisbon, Portugal

Joan Fitzpatrick, University ofWashington,Washington DC, United States

Geoff Gilbert, University of Essex, United Kingdom

Abi Gitari, Refugee Consortium of Kenya, Nairobi, Kenya

Jacques Jaumotte, Government of Belgium

Walter Kälin, University of Berne, Switzerland

Erdogan Kok, Government of Turkey

Britt Kristensen, Government of Denmark

Zonke Majodina, South African Human Rights Commission

David Matas, Barrister and Solicitor, Canada

BoldiszarNagy, University of Eötvös Loránd, Budapest, Hungary

Kathleen Newland, Carnegie Endowment for International Peace, United States Qin Huasun, Government of China

Joseph Rikhof, Government of Canada

Claudia Rocha, Government of Portugal

Virginia Shaw, Refugee Status Appeals Authority, New Zealand

Dorothee Starck, European Council on Refugees and Exiles, London, United Kingdom

Sally Weston, Government of the United Kingdom

Yozo Yokota, Tokyo University, Japan

Marjoleine Zieck, University of Amsterdam, the Netherlands

For UNHCR, Kate Jastram, Nathalie Karsenty, Irene Khan, Eve Lester, and Volker Türk

Institutional affiliation given for identification purposes only.

The first day of the Cambridge expert roundtable addressed the question of the scope and content of the principle of non-refoulement. The discussion was based on a joint legal opinion by Sir Elihu Lauterpacht and Daniel Bethlehem of the Lauterpacht Research Centre for International Law, which was largely endorsed.

The discussion focused on those aspects of the legal opinion which were considered deserving of particular comment or in need of clarification. The paragraphs below, while not representing the individual views of each participant, reflect broadly the consensus emerging from the discussion. The general appreciation of the meeting was:

1. Non-refoulement is a principle of customary international law.

2. Refugee law is a dynamic body of law, informed by the broad object and purpose of the 1951 Refugee Convention and its 1967 Protocol, as well as by developments in related areas of international law, such as human rights law and international humanitarian law.

3. Article 33 applies to refugees irrespective of their formal recognition and to asylum seekers. In the case of asylum seekers, this applies up to the point that their status is finally determined in a fair procedure.

4. The principle of non-refoulement embodied in Article 33 encompasses any measure attributable to the State which could have the effect of returning an asylum seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she is at risk of persecution, including interception, rejection at the frontier, or indirect refoulement.

5. […]

The San Remo Expert Roundtable addressed the question of the meaning of ‘membership of a particular social group’ in the refugee definition, as contained in the1951 Convention Relating to the Status of Refugees. The discussion was based on a background paper by T. Alexander Aleinikoff, Migration Policy Institute and University of Georgetown, entitled ‘“Membership in a Particular Social Group”: Analysis and Proposed Conclusions’. In addition, roundtable participants were provided with written contributions from Justice Lory Rosenberg, United States Board of Immigration Appeals, Deborah Anker, Harvard Law School, and James C. Hathaway, University of Michigan, and subsequent comments were received from the US Government, and Joan Fitzpatrick, University of Washington. Participants included thirty-three experts from twenty-three countries, drawn from governments, NGOs, academia, the judiciary, and the legal profession. Lee Anne de la Hunt, from the University of Cape Town Legal Aid Clinic, moderated the discussion.

The following summary conclusions do not represent the individual views of each participant or necessarily of UNHCR, but reflect broadly the understandings emerging from the discussion.

1. The membership of a particular social group ground is the Convention ground with the least clarity. Varying interpretations have been given to it in different jurisdictions, with two dominant approaches having been developed in common law jurisdictions – those of protected characteristics and social perception. In civil law jurisdictions, this ground is less developed, with more focus placedon the interpretation of persecution and on the other four grounds. […]

The discussion during the first day of the Geneva expert roundtable was based on a background paper by Guy Goodwin-Gill, Professor of International Refugee Law at the University of Oxford, entitled ‘Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention and Protection’. In addition, roundtable participants were provided with written contributions from Michel Combarnous, International Association of Refugee Law Judges (IARLJ), Frankie Jenkins, Human Rights Committee of South Africa, as well as the Refugee and Immigration Legal Centre in Melbourne, Australia. Participants included twenty-eight experts from eighteen countries, drawn from governments, NGOs, academia, the judiciary, and the legal profession. Rachel Brett from the Quaker United Nations Office in Geneva moderated the discussion.

The round table reviewed the extensive practice of States in regard to refugees and asylum seekers entering or remaining illegally, many of whom fall within the terms of Article 31 of the 1951 Convention. It took account of the origins of this provision in the debates in the United Nations in 1950, and in the Conference of Plenipotentiaries held in Geneva in 1951. It noted the intention of the drafters of the Convention to lay down, among others, a principle of immunity from penalties for refugees who, ‘coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present … without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence’.

Philip Alston, European University Institute, Florence, Italy

Evelyn Ankumah, Africa Legal Aid, Ghana and the Netherlands

Daniel Bethlehem, Barrister, Cambridge and London, United Kingdom

Chaloka Beyani, London School of Economics, London, United Kingdom

Ricardo Camara, Government of Mexico

Yoram Dinstein, Tel Aviv University, Israel; Max Planck Institute, Heidelberg, Germany

Andrew Drzemczewski, Council of Europe, Strasbourg, France

Mohamed Nour Farahat, Arab Organization for Human Rights, Cairo, Egypt

Guy S. Goodwin-Gill, University of Oxford, United Kingdom

Arthur Helton, Council on Foreign Relations, New York, United States

Dame Rosalyn Higgins, International Court of Justice, The Hague, the Netherlands

G. M. H. Hoogvliet, Attorney, the Netherlands

Ivor C. Jackson, United Kingdom (and Geneva, Switzerland)

Walter Kälin, University of Berne, Switzerland

Harold Koh, Yale University Law School, United States

Sir Elihu Lauterpacht, University of Cambridge, United Kingdom

Jean-Philippe Lavoyer, International Committee of the Red Cross, Geneva, Switzerland

Leanne Macmillan, Amnesty International, International Secretariat, London, United Kingdom

Caroline Mchome, Government of Tanzania

Sadikh Niass, West African NGOs for Refugees and Internally Displaced Persons (WARIPNET), Senegal

Anne-Grethe Nielsen, Government of Switzerland

Eugen Osmochescu, State University of Moldova, Chisinau, Republic of Moldova

Bonaventure Rutinwa, University of Dar-es-Salaam, Tanzania

Jorge Santistevan, former Ombudsman; Andean Commission of Jurists, Peru

Sir Stephen Sedley, Royal Courts of Justice, London, United Kingdom

Andre Surena, Government of the United States

Vigdis Vevstad, Government of Norway

Iain Walsh, Government of the United Kingdom

For UNHCR, Erika Feller, Kate Jastram, Philippe Leclerc, Frances Nicholson, and Volker Türk

Institutional affiliation given for identification purposes only.

Philip Alston, European University Institute, Florence, Italy

Evelyn Ankumah, Africa Legal Aid, Ghana and the Netherlands

Daniel Bethlehem, Barrister, Cambridge and London, United Kingdom

Chaloka Beyani, London School of Economics, London, United Kingdom

Ricardo Camara, Government of Mexico

Yoram Dinstein, Tel Aviv University, Israel; Max Planck Institute, Heidelberg, Germany

Andrew Drzemczewski, Council of Europe, Strasbourg, France

Mohamed Nour Farahat, Arab Organization for Human Rights, Cairo, Egypt

Guy S. Goodwin-Gill, University of Oxford, United Kingdom

Arthur Helton, Council on Foreign Relations, New York, United States

Dame Rosalyn Higgins, International Court of Justice, The Hague, the Netherlands

G. M. H. Hoogvliet, Attorney, the Netherlands

Ivor C. Jackson, United Kingdom (and Geneva, Switzerland)

Walter Kälin, University of Berne, Switzerland

Harold Koh, Yale University Law School, United States

Sir Elihu Lauterpacht, University of Cambridge, United Kingdom

Jean-Philippe Lavoyer, International Committee of the Red Cross, Geneva, Switzerland

Leanne Macmillan, Amnesty International, International Secretariat, London, United Kingdom

Caroline Mchome, Government of Tanzania

Sadikh Niass, West African NGOs for Refugees and Internally Displaced Persons (WARIPNET), Senegal

Anne-Grethe Nielsen, Government of Switzerland

Eugen Osmochescu, State University of Moldova, Chisinau, Republic of Moldova

Bonaventure Rutinwa, University of Dar-es-Salaam, Tanzania

Jorge Santistevan, former Ombudsman; Andean Commission of Jurists, Peru

Sir Stephen Sedley, Royal Courts of Justice, London, United Kingdom

Andre Surena, Government of the United States

Vigdis Vevstad, Government of Norway

Iain Walsh, Government of the United Kingdom

For UNHCR, Erika Feller, Kate Jastram, Philippe Leclerc, Frances Nicholson, and Volker Türk

Institutional affiliation given for identification purposes only.

The first day of the Lisbon expert roundtable addressed the question of the exclusion clauses of the 1951 Convention Relating to the Status of Refugees, basing the discussion on a background paper by Professor Geoff Gilbert, University of Essex, ‘Current Issues in the Application of the Exclusion Clauses’. In addition, roundtable participants were provided with the UNHCR Guidelines on the Exclusion Clauses and written contributions from the Government of the Netherlands and the Government of Turkey. Subsequently, written contributions were received from government experts of Canada, France, Turkey, and the United Kingdom and will be reflected in the report. Participants included thirty-two experts from twenty-five countries, drawn from governments, NGOs, academia, the judiciary, and the legal profession. Professor Georges Abi-Saab, former Justice of the International Criminal Tribunal for the former Yugoslavia, moderated the discussion.

In view of the limited time available, the discussion focused on those aspects of the background paper and the UNHCR Guidelines that were considered to be in need of clarification. The paragraphs below, while not representing the individual views of each participant or necessarily of UNHCR, reflect broadly the issues emerging from the discussion.

General considerations

1. In the wake of the Second World War, the drafters of the Convention contemplated certain types of crime to be so horrendous that they justified the exclusion of the perpetrators from the benefits of refugee status. In this sense, the perpetrators are considered ‘undeserving of refugee protection’.

2. […]

T. Alexander Aleinikoff, Georgetown University Law Center and Migration Policy Institute,Washington DC, United States

Deborah Anker, Harvard Law School, Cambridge, MA, United States

Osamu Arakaki, Shigakukan University, Kagoshima, Japan

Justice David Baragwanath, Law Commission of New Zealand

Widney Brown, Human RightsWatch, New York, United States

Eduardo CifuentesMuñoz, Government of Colombia

Bo Cooper, Government of the United States

Krista Daley, Immigration and Refugee Board, Ottawa, Canada

Lee Anne De la Hunt, University of Cape Town, Legal Aid Clinic, South Africa Cholpon Djakupova, Government of Kyrgyzstan

Bill Frelick, United States Committee for Refugees,Washington DC, United States

Rodger Haines, Refugee Status Appeals Authority, Auckland, New Zealand

James C. Hathaway, University of Michigan, Ann Arbor, MI, United States

Karim Lahidji, Government of France

Reinhard Marx, Legal Practitioner, Frankfurt/Main, Germany Hugh Massey, United Kingdom

Penelope Mathew, Australian National University, Canberra, Australia

Djamchid Momtaz, University of Tehran, Iran

A. D. Nuhu, Government of Nigeria

Olga Osipova, Russian Lawyers' Committee in Defence of Human Rights, Russian Federation

David Palmer, Government of Australia

Chan-un Park, Lawyers for a Democratic Society (MINBYUN), Seoul, Republic of Korea

Ryszard Piotrowicz, University ofWales Aberystwyth, United Kingdom

Ambassador Qin Huasun, Government of China

Simon Russell, International Committee of Voluntary Agencies, Geneva, Switzerland

Haken Sandesjo, Government of Sweden

Pablo Santolaya, Universidad Complutense de Madrid, Spain

Thomas Spijkerboer, Free University Amsterdam, the Netherlands

Hugo Storey, Immigration Appellate Authority, United Kingdom

Wolfgang Taucher, Government of Austria

Marta Torres Falcon, University of Mexico

Carina Van Eck, Government of the Netherlands

Amal Yazigi, Damascus University, Syria

For UNHCR, Erika Feller, Volker Türk, Janice Marshall, Shahrzad Tadjbakhsh, Alice Edwards, and Fanny Benedetti

Institutional affiliation given for identification purposes only.

Kohki Abe, Kanagawa University, Yokohama, Japan

T. Alexander Aleinikoff, Migration Policy Institute,Washington DC, United States

Estelle Matilda Appiah, Attorney-General's Department, Accra, Ghana

Lilia Dmitrievna Arestova, Government of the Russian Federation

Rachel Brett, Quaker United Nations Office, Geneva, Switzerland

Vincent Chetail, Graduate Institute of International Studies, Geneva, Switzerland

Judge Sebastian De Groot, International Association of Refugee Law Judges, the Netherlands

Shirley DeWolf, Southern African Churches in Ministry with Uprooted People, Mutare, Zimbabwe

Istvan Dobo, Government of Hungary

Rafael Garcia Gozalo, Government of Spain

Guy S. Goodwin-Gill, University of Oxford, United Kingdom

Vera Gowlland, Graduate Institute of International Studies, Geneva, Switzerland

Colin Harvey, University of Leeds, United Kingdom

Holger Hoffmann, Legal Practitioner, Bremen, Germany

Robert Illingworth, Government of Australia

Kate Jastram, Legal Practitioner, United States

Ninette Kelley, Legal Practitioner, Canada

Giovanni Kojanec, University ‘La Sapienza’, Rome, Italy

Vitit Muntarbhorn, Chulalongkorn University, Bangkok, Thailand

Dobromira Naydenova, Bulgarian Helsinki Committee, Sofia, Bulgaria Peter Nygh, Australia

Judge Mark Ockelton, International Association of Refugee Law Judges, United Kingdom

Thierry Schreyer, International Committee of the Red Cross, Geneva, Switzerland

Chris Sidoti, Human Rights Council, New SouthWales, Australia

Nikos Sitaropoulos, National Commission for Human Rights, Athens, Greece

Annikki Vanamo-Alho, Government of Finland

Daniel Warner, Graduate Institute of International Studies, Geneva, Switzerland

Wendy Young, Women's Commission on Refugee Women and Children, United States

For UNHCR, Erika Feller,Wilbert Van Hövell, Volker Tü rk, Diane Goodman (family unity discussion only), Walpurga Englbrecht (Article 31 discussion only), Nathalie Karsenty (Article 31 discussion only), Alice Edwards, and Eve Lester (NGO liaison to the Global Consultations)

Institutional affiliation given for identification purposes only.

The second day of the Cambridge Expert Roundtable addressed the question of supervising implementation of the 1951 Convention Relating to the Status of Refugees. This was based on a background paper by Professor Walter Kälin of the University of Berne entitled ‘Supervising the 1951 Convention on the Status of Refugees: Article 35 and Beyond’. Participants comprised thirty-five experts from some fifteen countries, drawn from governments, non-governmental organizations (NGOs), academia, the judiciary, and the legal profession. They were provided with a number of written comments on the paper, as well as the report and the conclusions and recommendations of the Global Consultations Regional Meeting held in San José, Costa Rica, on 7–8 June 2001. The latter compared UNHCR's supervisory role with that of the Inter-American human rights bodies. The morning session was chaired by Professor Chaloka Beyani of the London School of Economics and the afternoon by Professor Guy S. Goodwin-Gill of the University of Oxford.

Taking into account the breadth of the discussion and the recognized preliminary character of the inquiry, this document presents only a brief summary of the discussion, as well as a list of the varied suggestions on strengthening implementation which came up in the course of it. The document does not represent the individual views of each participant or necessarily of UNHCR, but reflects broadly the themes emerging from the discussion.