UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Fulfilling the Mandate
Finding Durable Solutions
Resettlement outside the Region
ROLE OF INDIVIDUAL STATES
IN PROTECTING REFUGEES HUMAN RIGHTS
Protection Against Refoulement
THREATS TO THE HUMAN RIGHTS OF REFUGEES
Migratory Pressures on Western Countries
A Changing World
THE INTERNATIONAL CONTEXT
are many people in the world whose lives, liberty or security are in jeopardy.
Some are threatened by political oppression, some by natural disasters,
others by economic conditions that make even a subsistence existence difficult
or impossible. Still others flee war or civil strife. Such situations
force many individuals to leave their homes to seek refuge and security
elsewhere, either in other countries or in different parts of their own
country. In a general way, all such people may be called "refugees."
In international and national legal systems and practice, however, the
term carries a much more limited and technical meaning. Those who fall
under the rubric "refugees" in this more technical sense - currently
some 17-18 million people worldwide - are the subject of this paper, which
provides an overview of the international system that has developed to
protect the human rights of refugees.(1)
The 1951 United Nations
Convention Relating to the Status of Refugees is the only universal
document governing the treatment of refugees by states in whose territories
the refugees are found. Some 136 states have acceded to the Convention
and its Protocol, the most important parts of which are its definition
of "refugee" and its prohibition against refoulement.
The definition of a refugee
in Article 1 of the Convention is a person who:
owing to well-founded
fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside
the country of his nationality and is unable, or owing to such fear,
is unwilling to avail himself of the protection of that country; ...
Article 33 goes to the heart
of a states duty to protect the human rights of refugees, although
it is important to note that the protection granted has also become part
of customary international law. Entitled "Prohibition of Expulsion
or Return (Refoulement)," Article 33 states:
No Contracting State shall
expel or return (refouler) a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened
on account of his race, religion, nationality, membership of a particular
social group or political opinion.
It is important to recognize
what the Convention does not do:
not create an expansive definition of "refugee." The rights
of refugees under the Convention arise only for those who have crossed
an international boundary in consequence of persecution on racial,
religious, political or social grounds. Those whose need for refuge
flows from other than what are essentially political origins - that
is, from war, famine, flood, statelessness, poverty and so on - and
who may be of great humanitarian concern, have no claim on other states
that can be asserted by reliance on the Convention.
both customary international law and the Convention require that contracting
states not return (refoule) refugees to the country where they
fear persecution, such states are not required to permit them to stay
permanently and they are not prohibited from returning refugees to
a third country, although there is a danger that refoulement
is ultimately possible as a result of this practice.
There are also two regional
agreements, for Africa and for Central America, that extend the meaning
of the concept of refugee for their signatory states in an attempt to
respond to their particular needs. In actual fact, many Western countries,
to varying degrees and under varying conditions, also extend protection
to a broader range of individuals than mandated by the Convention, even
though such individuals are not recognized as refugees under the narrow
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
A. The Mandate
1950, with the adoption by the General Assembly of the Statute of the
Office of the United Nations High Commissioner for Refugees (UNHCR), the
current institutional framework for the protection of refugees came into
being. Currently, UNHCRs staff, including short-term employees,
number some 5,600 (84% of whom work in the field) in 118 different countries
as well as at headquarters in Geneva. Its budget in1998 is US $1.1 billion.
The general mandate of UNHCR is twofold: to protect refugees and to seek
permanent solutions for their problems. It currently assists more than
22 million people.
characteristic that most distinguishes Convention refugees from other
migrants (for example, those seeking better standards of living, often
confusingly called "economic refugees") is their need for protection.
In crossing an international border and being unwilling or unable to return,
refugees place themselves outside the realm of protection normally provided
by a state to its citizens. The most central aspect of the role of UNHCR,
then, is to ensure that refugees receive that protection by: providing
protection against refoulement, providing for their basic physical
needs (for shelter, food and so on), and ensuring respect for other basic
is a commonly accepted hierarchy of permanent solutions to refugees
problems: repatriation to the country from which the refugees fled, integration
into the country of first asylum, and resettlement in another country.
can be a risky business. There can be serious threats to refugees who
return to areas where the situation that caused them to leave has not
improved. Nevertheless, repatriation, when it is possible and provided
it is undertaken voluntarily, is usually thought to be the best durable
solution, since it permits refugees to re-integrate into familiar surroundings
and culture. Many refugees repatriate on their own, but when movements
are planned and organized UNHCR plays a key role in ensuring that returnees
have accurate information about conditions in their former homeland, that
the individuals are moving voluntarily, and that their human rights will
be protected. UNHCR also has a role to play in monitoring their treatment
after return, and in assisting returnees to re-establish themselves. This
assistance includes, depending on the circumstances, providing returnees
with transit centres, grants, food, housing materials and agricultural
implements to assist them in their initial year of return.
b. Local Integration
Whether a country to which
refugees initially flee can ultimately integrate them into its economic
and social fabric depends on a variety of factors: the number of refugees,
the economic and demographic structure of the country, the nature of its
society (including racial and religious differences), the political and
security situation, and the environmental impact of the newcomers.
can have benefits for the refugees, UNHCR and the host country. The establishment
of refugee camps may be essential for emergency care, but ongoing camps
often act as a disincentive to longer-term economic self-sufficiency,
and refugees resulting pride and self-respect. Camps are also very
costly to operate year after year; thus, even partial self-sufficiency
lightens the load on UNHCR. From the point of view of the host country,
money spent on self-sufficiency projects also aids the country generally.
outside the Region
some situations where repatriation is impossible and countries of first
asylum are unwilling or unable to offer continuing protection to refugees,
resettlement, typically in developed Western countries, may be the only
option available. Its use is circumscribed, however, by the availability
of resettlement places and by the financial demands of sponsorship. For
example, each of the 7,300 government-assisted refugees that Canada is
prepared to admit yearly will be financially supported for a period of
one year, or until employment is obtained, whichever comes first.
itself does not place any duty on countries to resettle refugees, although
one clause of the Preamble does urge that states recognize the importance
of an international approach to refugee problems. The largest resettlement
movement in the post-war period has been that of the Indochinese refugees
from the mid-1970s onward.
international organizations play an important role, directly or indirectly,
in assisting refugees. These organizations include the International Organization
for Migration, the Red Cross, UNICEF, the World Food Program, the World
Health Organization, and the UN Disaster Relief Organization.
to international organizations, non-governmental organizations in various
countries assist in the settlement of refugees and, particularly in Western
countries, play an important advocacy role in asserting refugee rights,
particularly when these appear to conflict with the interests of states
as perceived by their governments. Such organizations can also be effective
advocates of the rights of individual refugees who appear to have been
treated unfairly or whose refugee claims appear to have been incorrectly
ROLE OF INDIVIDUAL STATES
IN PROTECTING REFUGEES' HUMAN RIGHTS
is an important, if self-evident, fact of the modern world that refugees
flee from and to individual countries, and are sometimes resettled in
still others. UNHCR has no independent authority to enter any state, even
to monitor or assist in refugee camps, without the permission of the country
in question. Individual states contribute to the protection of refugees
human rights in three main ways: through economic assistance, resettlement,
and protection against refoulement.
A. Economic Assistance
financial assistance, many countries of first asylum, most of which are
in the Third World, would be unable to shoulder their burdens, particularly
where there have been mass influxes of refugees. Thus, financial assistance
to UNHCR and to other humanitarian agencies is essential to enable them
to deliver emergency aid and longer-term protection. Donations for food
aid are also important.
As discussed above, resettlement
in countries out of the region that generated the refugees is the least
preferred durable solution, but is nevertheless sometimes unavoidable.
The primary countries of resettlement in terms of actual numbers accepted
are the United States, Canada and Australia, but other countries also
share the burden, with some concentrating on the hard-to-place refugees,
such as the disabled. As noted, the largest single resettlement effort
in the last 40 years was that for Indochinese refugees.
It should be
noted that providing resettlement opportunities for refugees does not
threaten states interests as do spontaneous arrivals. States retain
full sovereign rights on whether or not to admit refugees from abroad,
on which people to admit, and on how many. They may select refugees on
the basis of who will best settle in the country (as does Canada), or
according to other criteria, as they wish. Spontaneous arrivals, on the
other hand, prevent the state from exercising some of those choices. The
problems that this poses will be discussed below.
In addition to economic
assistance and the provision of resettlement opportunities, a states
most important duty is to ensure that individuals are not forcibly returned
to countries where they claim to have a well-founded fear of persecution.
This protection can be temporary or long-term and it exists independently
of the Convention as part of customary international law. The Convention
itself is silent about procedures to be used to determine the bona
fides of a refugee claim. Indeed, many signatories have no formal
procedures at all, relying instead on UNHCR. Others, primarily Western
countries, have developed administrative or quasi- judicial procedures
to determine whether a claim should be recognized.
is often bound up with politics, procedures, and state requirements. Thus,
it should not be surprising that overall refugee recognition rates vary
greatly from country to country, or that certain nationalities will enjoy
more success than others in having their claims recognized.
Since 1988, there have been
developments in Europe with regard to multilateral agreements for assessing
the responsibility of states to determine refugee claims. Specifically,
these agreements are the Dublin Convention and the Schengen
Agreement, whose terms are briefly discussed below.
The Dublin Convention
(the Convention Determining the State Responsible for Examining Applications
for Asylum Lodged in One of the Member States of the European Communities,
also called the Convention on Asylum or the Asylum Convention) was signed
in June 1990 by all EU states except Denmark, which signed a year later.
The Convention does not
attempt in any way to harmonize the asylum procedures of its signatories
or establish standards for the adjudication of claims; nor does it establish
any international body to decide asylum claims. It is concerned primarily
with establishing criteria by which signatory states may identify which
of them is responsible for deciding -- by applying its own national legislation
-- a claim to refugee status made within one of the member states. As
is stated in the Preamble to the Convention:
Aware of the need, in
pursuit of this objective [the abolition of internal frontiers], to
take measures to avoid any situations arising, with the result that
applicants for asylum are left in doubt for too long as regards the
likely outcome of their applications and concerned to provide all applicants
for asylum with a guarantee that their applications will be examined
by one of the Member States and to ensure that applicants for asylum
are not referred successively from one Member State to another without
any of these States acknowledging itself to be competent to examine
the application of asylum[.]
The primary rule is that
the state where the claimant first arrives must hear the claim if the
claimant arrived "irregularly" (i.e., without documents), unless
he or she had been living in another member state for at least six months
prior to that time. Applicants cannot make a claim in one state, then
move to another and claim again (unless the second state agrees to hear
the claim). Thus, asylum shopping is to be deterred. Exceptions to the
"country of first arrival" are made for applicants who have
close family already recognized in a country and applicants in possession
of valid residence permits. Member states have a six-month period within
which they may ask another state to take care of the application.
The Convention also requires
mutual exchanges of information relating to asylum practices and statistical
data on asylum claims, and permits the exchange of general information
on trends in asylum applications and country of origin profiles. Member
states may also request information relating to individual cases for the
purposes of determining responsibility for the claim or deciding the claim
itself. Such information is restricted to factual matters. Details relating
to the grounds of an asylum request and any decisions made may be released
only with the consent of the asylum seekers.
The Schengen Agreement
and Supplementary Agreement (Convention on the Application of
the Schengen Agreement of 14 June 1985 relating to the Gradual Suppression
of Controls at Common Frontiers, between the Governments of States Members
of the Benelux Economic Union, the Federal Republic of Germany and the
French Republic), was agreed to in principle in 1985 by Belgium, France,
Germany, the Netherlands and Luxembourg. The Agreement that resulted was
later joined by Italy, Spain, Portugal, Greece and Austria. The Agreement
came into force in March 1995.
covers more than just asylum policy; it deals with common border controls,
common visa policies and so on. Like the Dublin Convention, the
agreement provides that asylum seekers are to be dealt with under the
domestic legislation of the signatory states. The state first entered
has the primary responsibility for determining the claims of individuals
who lack documents and a six-month rule applies (as in the Dublin Convention)
for determining which state is responsible. Exceptions are made for applicants
with close family already recognized as refugees by a state. The Agreement
also provides for the exchange of data and information.
THREATS TO THE HUMAN RIGHTS OF REFUGEES
of the threats to the human rights of refugees are those that have existed
from time immemorial -- repressive regimes, civil conflict, ethnic clashes,
poverty, and so on. It is a truism to state that the world needs to pay
more attention to these root causes of refugee movements. Meanwhile, refugees
are with us now, and will be in the future. They will continue to be dealt
with by the laws, institutions, and state practices that constitute the
loose refugee protection "system" described above. In the past
decade, however, a number of additional pressures have been placed upon
the system and its component parts.
Pressures on Western Countries
In the last two decades,
European and North American countries have increasingly experienced increases
in the numbers of individuals seeking asylum. In Canada, a system designed
to handle small numbers of claimants was flooded in the 1980s, resulting
in a backlog of some 95,000 claims by the end of 1988. Currently, over
20,000 new claims per year are being received.
Large influxes put significant
pressures on determination systems designed to handle far fewer applicants.
Moreover, many of those seeking asylum are perceived as migrants seeking
immigration opportunities, rather than bona fide refugees. Others
seek shelter for reasons relating to war or civil strife and therefore
do not fall under the strict definition of refugee found in the Convention.
Moreover, the higher the number of claimants, the more difficult it is
to separate valid from invalid claims in an acceptable period of time.
Arrivals of refugee claimants
are described as "spontaneous" in the sense that they occur
outside normal immigration channels and in an unpredictable fashion. Even
apart from the practical difficulties of dealing with relatively large
numbers, such movements affect the ability of a sovereign state to control
its borders and are seen as threatening on that ground alone. Even immigrant-receiving
countries such as Canada are very concerned about control issues, particularly
since it is clear that public support for a generous refugee program depends
on its being controlled, with only genuine refugees being assisted. In
addition, spontaneous arrivals make it difficult to identify criminals
and security risks among the claimants, a situation that may further erode
general public support for genuine refugees.
In response to these migratory
pressures, Western countries began in the 1980s to tighten up their determination
systems and to introduce controls designed to deter spontaneous arrivals.
Methods include visa restrictions, fines on airlines that carry undocumented
passengers, returning claimants to third countries, detention of claimants,
and restricted rights to employment. Further measures also included the
development of the multilateral agreements discussed above.
It should be realized that
only a very small percentage of refugees ever leave their own region to
claim asylum in the West. On the other hand, refugee determination systems
in developed countries are individualized, bureaucratic, often lengthy,
and very costly. Further, refugees become entitled to benefit from extensive
social support systems paid for by taxpayers.
Indeed, although greatly
increased migration has been discussed in terms of the recent restrictive
response of governments and the threat this presents to genuine refugees,
there is no doubt that spontaneous arrivals in the West consume a disproportionate
share of the worlds resources devoted to refugees: states spend
many times the amount of the entire budget of UNHCR on spontaneous arrivals.
Furthermore, it may be argued
that those who arrive spontaneously in the West are not representative
of the refugee population as a whole, being largely male, young, and resourceful
enough to manipulate visa and control systems in order to travel to the
West. Meanwhile, a disproportionate number of residents of refugee camps
are children and women.
contradictions and difficulties, the concept of asylum remains at the
heart of any system of refugee protection. In all Western countries, the
challenge of the future will continue to be how to coordinate responses
and streamline refugee determination systems without sacrificing fairness
and reliability, and how to institute appropriate border controls without
impairing the ability of individuals in genuine need to find refuge.
B. A Changing
In the close to 50 years
since UNHCR came into existence, the world has changed dramatically. The
number of refugees has steadily increased and, while a number of refugee
problems have been solved, many more show no signs of resolution. Indeed,
events in the former Yugoslavia brought immense pressures on international
organizations as well as on European states in which the displaced sought
refuge. Many of the worlds refugees now originate in the Third World
and do not necessarily fit the Conventions narrow definition of
"refugee"; mass movements also defy the Conventions implied
individualized approach to persecution. Moreover, as noted above, large
scale migration from South to North, and potentially in significant numbers
from East to West, threatens the institution of asylum in the West. It
will be continually necessary to adapt to these changes and respond to
the current pressures on the system. The UNHCRs Executive Committee
has established a working group to study all aspects of refugee protection
today. No one, however, is suggesting that there are easy answers to these
Including the internally displaced and others of concern, the United Nations
High Commission listed 22,376,300 people of concern to that office as
of 1 January 1998.