To What Extent Have UNHCR's RSD Procedures been an Effective and Fair Tool in the Refugee Decision-making Process - Essay Example

?"To what extent have UNHCR's RSD procedures been an effective and fair tool in the refugee decision-making process if considering the dual role of UNHCR as a refugee protector and as a refugee decision-maker? I. Introduction In a world beleaguered by conflict and strife, an unfortunate but undeniable phenomenon is the marked increase in the number of refugees worldwide. At the beginning of 2000, there were 14 million refugees.1 In 2010 alone, there were 43.7 million internationally and internally displaced individuals across the globe, which points to a visible increase in humanitarian crises since that year.2 The United Nations High Commission on Refugees is reposed with the dual task of both ensuring the protection of refugees and reducing their vulnerabilities, whilst at the same time being charged with the role of refugee decision-maker in Refugee Status Determination (RSD) procedures, when individual States renege on this role. This duality of roles – protector and decision-maker – has been theorized to lead to quantifiable adverse effects on the refugees themselves. This is particularly problematic in light of the particular vulnerabilities that refugees already face, simply by being refugees. According to the Inter-Parliamentary Union3: Refugees have been the targets of violent attacks and intimidation, largely because they were perceived as “different” from the communities in which they had temporarily settled. Tensions between refugees and local populations have erupted when refugees were seen as competitors for natural and economic resources. Armed combatants have been allowed to mingle freely with--and intimidate with seeming impunity--the civilians who sought safety in refugee camps and settlements. And, increasingly, governments have resorted to detention of illegal entrants, including women and children, many of whom are seeking asylum. Given this, it is imperative to craft an international legal framework that ensures an adequate standard of protection for the refugees. Indeed, the trend must be to heighten protections and reduce impediments to the full exercise of their rights. If the legal regime that covers refugee protection and selection results in outcomes that are contrary to the interests of refugees, then indeed it must be subjected to critical examination. II. Statement of Aims This paper intends to conduct an exploratory analysis on whether the existing legal framework that grants the dual mandate of the UNHCR and sets down its RSD procedures has led to inequitable outcomes for the refugees. By “inequitable”, this paper means either of two things (1) that, as a result of the legal framework, an individual that would otherwise have been granted refugee status under a more liberal contemplation, would be denied such status; (2) an individual granted refugee status would be given less protections than would otherwise have granted under a more liberal contemplation. Is the UNHCR deviating from its palliative protective role, and transforming into a refugee problem solver for the individual states, or even worse, as an enforcement mechanism for donor states’ policies of containment and exclusion? This preliminary proposal aims to analyze in depth the accountability of UNHCR’s RSD practices and the ethical issues arising from its additional role as one of the largest refugee decision-makers in the world. III. Research question and hypothesis This paper is guided by the following research question: To what extent have the UNHCR’s RSD procedures been an effective and fair tool in the refugee decision-making process, considering its dual role as a refugee protector and refugee decision-maker? To this end, the following sub-questions are likewise proposed: a. What are the concrete areas of tension between the UNHCR’s role as a refugee protector, and its role as decision-maker? b. What, if any, are the gaps in the RSD procedures, examined vis a vis the mandate of the UNHCR and existing International Law and International Humanitarian Law Conventions? c. Using as basis international jurisprudence on refugee selection, can a bias against refugees be inferred from the application of the current legal framework that governs RSD procedures? d. What recommendations can be made to ensure that the UNHCR remains an effective and fair tool as refugee protector and refugee decision-maker? In answering the main research question, the hypothesis put forward is that despite the contradictions in its mandate, the UNHCR RSD attempts to promote fairness and respect for human rights have strengthened international refugee law. While contradictory elements in newer conventions and mandates create the dichotomy with the primary mandate, the UNHCR procedures and guidelines attempt to eliminate this dichotomy by ensuring fairness and respect for human rights. The locus of the problem is not in the legal framework of the UNHCR, but in the States themselves and their inability to harmonize their domestic legal regimes with international law commitments. IV. Background The very first conception of the concept of “refugee” is juridical in nature. The focus was not so much social protections, or a recognition of their particular vulnerabilities, but to solve the conundrum arising from the situation of statelessness. As explained by Hathaway: The withdrawal of de jure protection by a state, whether by way of naturalization or the withholding of diplomatic facilities such as travel documents and consular representation, results in a malfunction in the international legal system. Because the then existing international law did not recognize individuals as subjects of international rights and obligations, the determination of responsibilities on the international plane, fell to the sovereign state whose protection one enjoyed. When the bond of protection between citizen and state was severed, no international entity could be held accountable4. Hence, it was imperative to create a replacement for the nexus between state to individual, and fill the vacuum. According refugee status was deemed the appropriate measure. Following that was the social perspective and the individual perspective, all taking place before 1951. The former saw refugees as casualties of “broadly based social or political occurrences which separate them from their home society5” whilst the latter viewed refugee status “as a means of facilitating international movement for those in search of personal freedom.” It is on this individualistic foundation that the refugee definition in the Convention of 1951 was crafted. In the beginning, refugee rights first focused on displaced Europeans, they soon expanded to include other types of groups. Refugee rights became institutionalized under the UN in 1949. On 3 December 1949, the United Nations General Assembly passed a Resolution 319 (IV), establishing UNHCR.6 The Statute of the Office of UNHCR was then later adopted by the General Assembly on 14 December 1950 under the Annex to Resolution 428 (V).7 In 1951 the Convention relating to the Status of Refugees was adopted with an aim to define the notion of a refugee for purposes of future use. 8 The creation of UNHCR was preceded by the World War II and prompted by large numbers of displaced Europeans, who needed to be returned home. However, soon other types of refugees arose.9 The definition of a refugee expanded. It used to be that only groups of refugees could apply under UNHCR for protection. 10 These groups first had to fall under “the Arrangements of 12 May 1926 and of 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization” in order to be treated as refugees.11 Since then, several groups of people have become applicable for consideration under UNHCR as well. 12 Originally, UNHCR was required to work with states. As such, its duty was to “assist[…] Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.” 13 With time, as the definition of a refugee expanded, so did the UNHCR activities. Many states did not ratify the 1951 Refugee Convention. As a result, UNHCR needed to take on the duties of states, especially with regard to RSD and humanitarian assistance. V. Current Legal Framework A. Definition of a “Refugee” The current definition of “refugee” traces itself to Article 1A(2) of the 1951 Convention, which defines a refugee as any person who “owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” The 1967 Protocol Relating to the Status of Refugees expanded the coverage of the 1951 Convention to include non-European refugees, but retained the 1951 definition in substance. The definition that ascribes refugee status only in cases where there is a “well-founded fear” of persecution precludes instances where there are large groups of displaced people suffering from the consequences of involuntary migration, but not necessarily persecuted as a result of the exercise of civil and political rights. Seeking to address this, in 1984, the Cartagena Protocol was enacted, stating that “the refugee definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” Even though the Cartagena Protocol is not formally binding, it is an articulation of the perceived gaps in the 1951 Convention. Indeed, after 1975 and until 1995, the United Nations and its various instrumentalities, have come up with a number of General Assembly and ECOSOC resolutions, which made victims of both natural and man-made disasters come within the UNHCR’s ambit of protection. Hence, those who may be qualified to become refugees and are entitled to the protections afforded to refugees are (1) those meeting the eligibility set out in the 1951 Convention and the 1967 Protocol, (2) those coming under the expanded definition, for so long as they do not come under the Exclusion clauses contained in Article 1F of the 1951 Convention. B. Statutory Protections to Refugees The most important privilege of being conferred refugee status is that one is protected from being returned to the country where they face persecution or a risk of persecution. This is known as the principle of non-refoulement and is reposed in Article 33(1) of the 1951. According to the said provision, no state shall: “expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.” Other rights and benefits include protection against threats to their physical security, access to courts, basic material needs, freedom of movement, education and reunification. Given these benefits and given the dangers and vulnerabilities of displacement and involuntary migration, the role of the UNHCR, the only UN agency specifically charged with the mandate of protecting refugees all over the world, is absolutely crucial. C. The “dual” role of the UNHCR It is clear that the protection of refugees is the primary task of the UNHCR. The UNHCR’s primary duty was to assist countries in dealing with refugees through repatriation of refugees or obtainment of documents and reduction of their numbers, as well as humanitarian aid provision coordination. 14 However, as previously mentioned, in some instances that are becoming increasingly frequent, the UNHCR also conducts Refugee Status Determination on the basis of the 1950 Statute. According to its Handbook, this may occur (1) in countries that are not signatories to the 1951 Convention or the 1967 Protocol, or (2) in countries that are signatories but determination procedures are either not in place, inadequate, or based on a wrong interpretation of the 1951 Convention15. The RSD procedures may be conducted on an individual or on a group basis. There is no set prescribed procedure for conducting the determination of refugee status, only that an in-depth examination must be made, looking at the circumstances of the case as a whole. In the context of a mass diaspora, where individual determination of cases is not feasible or perhaps no longer necessary in light of the scale of the atrocity from which they flee, and which the global community is already aware of, group determination procedures may be availed of. Corollary to the determination of who is qualified to be a refugee is the determination of who is not qualified to be a refugee. Not all those who are at risk of persecution may be entitled to refugee status – some may be unentitled of receiving protection as they are receiving protection elsewhere16, whilst some may be undeserving of protection as they pose a security risk to the receiving state or whose own actions are as reprehensible as the entity they attempt to flee from17. VI. Review of Related Literature The academic literature on the issues that attend refugee status determination is vast, indeed. As RSD is at the heart of refugee law and can in fact be a matter of life and death in extreme cases, it is not surprising that theorists have opined one way or another on it – surfacing problems and gaps, recommending solutions. Jones has called it “an imperfect, haphazard and challenging process18”. Most researchers evaluate the extent of the unfair practices. In places such as Cairo, where UNHCR offices are stationed, the issue of fairness on behalf of UNHCR has become a grave concern for many, applicants and legal experts included.19 The UNHCR office in Cairo has been found to act with contempt for accountability and own rules and procedures. Occurrence of the de facto refoulement increases in such cases. RSD practices have been inconsistent in states as well: the United States, Canada and the United Kingdom, besides UNHCR.20 However, it is not efficient to look at the entire breadth of literature concerning refugee status, as there are many. It is prudent to focus on material that analyzes the legal framework governing the UNHCR and international refugee law. One of the main issues being propounded with respect to the UNHCR’s RSD practices is the question of its adherence to international covenants. One such international covenant is the International Covenant on Civil and Political Rights. For example, Article 14(1) provides that, “xxx everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law” and according to the Human Rights Committee “the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.21” The question is whether or not RSD proceedings may be considered a suit for purposes of invoking the right to a fair and public hearing by a competent, independent and impartial tribunal. Another issue being discussed with respect to the UNHCR’s RDS processes is the right to entry. To quote Alexander: This distinction between refugee status determination and ‘right of entry’ is particularly evident when UNHCR is the body making the determination. UNHCR is not a state, and recognition by UNHCR clearly gives no right of entry anywhere, as many UNHCR-recognized refugees can sadly attest. More recent scholarly work focused on the dichotomy between the UNHCR as the protector and oversight agency. The recent work starts from the claim that the UNHCR Statute does not define clearly the UNHCR role of the protector. Instead, the role is shared with states, which have the primary role to protect.22 The second explicit role of UNHCR is to oversee the implementation of the 1951 Refugee Convention.23 The latter comes in conflict with the former. Though the roles of UNHCR have expanded over the years, these two remain explicit mandates of the UNHCR and thus are of main concern to legal experts. UNHCR’s auxiliary role, exercised through RSD, is thus ridden with violations of its own principles. UNHCR acts in inconsistent manner regarding RSD. It replaced the government in Egypt, though the government ratified the 1951 Refugee Convention. Moreover, UNHCR does not have same procedural standards as states, though it conducts RSD.24 The doctrine of negative responsibility is seen by some scholars as the cause of the dichotomy. Negative responsibility doctrine’s domain includes not only action, but also inaction. Though in positive responsibility only the duty to protect is considered to be imperative, in negative responsibility inaction can be judged on equal terms.25 Alexander too belongs to this school of thought, since UNHCR took on the responsibility to protect in order not to be blamed for indifference in absence of state promotion of the non refoulement principle. VII. Methodology Doctrinal analysis will be used to examine and answer the research question regarding fairness of RSD within the larger legal context of the maturity of the international refugee law. To enumerate with specificity my research methods, firstly, I will collect data from UNHCR’s Refworld website which possesses an accurate and broader compilation of web-links to gather relevant legal information such as policy documents, key case law, as well as statistical data, and valuable opinions and papers from leading authorities in the refugee field.  Secondly, I will look at various journals on the relevant topic from sources such as International Journal of Refugee Law and Oxford Journal of Refugee Studies by authors such as Kagan, Lewis and Alexander, and text-book sources such as The Rights of Refugees under International Law by Hathaway J.(CUP 2005).  Finally, I believe that the enormous media coverage on the latest developments in the Middle-East and North Africa and how UNHCR is dealing with it, will give me a clear insight into the UNHCR responses at refugee crises, therefore; in order to expand my research I will also gather information on this issue through reliable articles from local and international media. I deem my research to be feasible because it will only look at secondary data, and there is a wide range of literature available online and from the UNHCR’s own database. The limitation of my research is that, because it does not contain primary data, it will not look at how the law is articulated and interpreted in a wide variety of contexts. Indeed, field research will be required for such an endeavor and that is not the province of this research. Also, my research will only cover refugee law after 1951, when the Convention came about, and will no longer cover – except by way of providing a broad historical vista – circumstances and legal precedents before 1951. Some of the shortcomings of the research reside in the fact that the law in itself is ridden with gaps and is subject to interpretations by the implementers – thus leading to variegated outcomes. Moreover, many of the existing research on refugee law tend to be biased in favor of a particular position, thus presenting an unreliable source of information. Bibliography Statutes and Procedures: Asylum-Processes: Fair and Efficient Asylum Procedures (2001). [Online] UNHCR Available at: http://www.unhcr.org/refworld/pdfid/3b36f2fca.pdf [Accessed on 6 June 2012] Charter of Fundamental Rights of the European Union (2000). [Online ]European Union Available at: http://www.unhcr.org/refworld/docid/3ae6b3b70.html [Accessed on 6 June 2012] Convention Relating to the Status of Refugees (1951). [Online] UNHCR Available at: http://www.unhcr.org/3b66c2aa10.html [Accessed on 6 June 2012] European Convention on Human Rights (1950). [Online] Council of Europe Available at: http://www.hri.org/docs/ECHR50.html [Accessed on 7 June 2012] Fair and expeditious Asylum Procedures (1994). UNHCR International Covenant on Civil and Political Rights (1966). 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Brief Overview of United Nations Activities Involving Migration Issues [Online] Immigration and Naturalisation Committee Newsletter Available at: http://apps.americanbar.org/intlaw/committees/tax_estate_individuals/immigration_naturalization/summer2005.pdf [Accessed on 6 June 2012] Simeon, J.C. (2010). A Comparative Analysis of the Response of the UNHCR and Industrialized States to Rapidly Fluctuating Refugee Status and Asylum Applications: Lessons and Best Practices for RSD Systems Design and Administration [Online] International Journal of Refugee Law Available at: http://ijrl.oxfordjournals.org/content/22/1/72.abstract [Accessed on 7 June 2012] Tuerk, V. (2010). UNHCR’s Role in Supervising International Protection Standards in the Context of its Mandate [Online] UNHCR Available at: http://www.unhcr.org/4bf406a56.html [Accessed on 6 June 2012] Tuerk, V. and Eyster, E. (2010). Strengthening UNHCR’s System of Accountability [Online] International Journal of Refugee Law Available at: http://ijrl.oxfordjournals.org/content/22/2/159.abstract [Accessed on 6 June 2012] Database: UNHCR (2011 – 2012). Statistics and Operational Data [Online] UNHCR Available at: http://www.unhcr.org/pages/49c3646c4d6.html [Accessed 26 June 2012] UNHCR (2012). Refworld [Online] UNHCR Available at: http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain [Accessed on 26 June 2012] Read More