Refugee The Stranger Class : Failure of UNHRC’s Conventions

Picture courtesy: https://bpr.berkeley.edu/wp-content/uploads/2016/04/Syrian-refugees.jpg

This article was written by Shubham Singh a student of Amity University U.P.

Abstract

The term ‘Refugee’ and its use in social and political debates have always been fluctuating, continually being defined and redefined by officials and politicians. The discussions regarding the need to adopt either a more humane or a politically closed definition of the refugee are a continuation of the debate and the contrasting views that have been in existance since before the 1951 UN Convention. The UN Convention of Refugee came into existance  in response to the plight of the Holocaust victims and others who have been displaced from Central and Eastern Europe during the second World War. It also supports other human rights treaties agreed by the International Community. Since the convention legalised he status of those who had been displaced due to this particular world event, at the same time it shut the door to future unwanted guests and enabled for government control over newcomers, transferring power back to states after considerable interstate cooperation in the pre-war years. In this paper, the researchers have argued that Refugee’s Convention is still relevant. Rather than the convention itself, it is countries’ interpretations of the convention that needs to be addressed in order to ensure adequate protection to persecuted people in the present global scenario.

The 1951 Convention is the earliest commitment to the codification of legally binding Refugee rights. It came on the outlet of World War II. It was a treaty that defines Refugee and their rights. The UN General Assembly created the office of the UN High Commissioner for Refugee with an ambitious goal to protect rights of Displaced People. Its frame work is based on 1948 International Declaration Of Human Rights and 4^th Geneva Convention of 1949 in specifying the rights of the Refugees[1].The drafting of the 1951 convention represented a profound re-orientation in Refugee organization, agreements and agendas but it was just the evolution, not Revolution. In 1947 the commission on Human Rights adopted a resolution that early consideration to be given by the UNs to the legal status of persons who do not enjoy the protection of any government, in particular the acquisition of nationality, as regards their legal status and social protection and their documentation. The Refugee Convention has been the central International Instrument on Refugee status supplemented by the 1967 protocol which extended its temporal and geographical application. In the half century since the conventions inceptions, International HRs has evolved as a sophisticated system of Rights and Duties between the individual and the state which has affected the traditional notions of state sovereignity and behaviour in an unprecedented manner. Refugees have rights which should be respected prior to, during and after finding shelter

The Role of UNHCR

  Pending an initiative that would address the systemic cause of unequal distribution and the question of why states should must engage in burden sharing, UNHCR could meanwhile act upon the manifest impossibility to secure a convergence of interests and address the consequences of the fact that the 1951 Convention and 1967 Protocol are confined to securing protection, rather than equitable distribution of corresponding burdens for the states parties to the 1951 Convention and the 1967 Protocol. The High Commissioner observed that the very existence of UNHCR ‘is a manifestation of burden-sharing’.  Since states are called upon to host and protect refugees rather than UNHCR, this statement is questionable, but UNHCR can help share the burdens of states more equitably.  UNHCR could use the funds it has at its disposal in a more equitable manner. The operational history of UNHCR is rife with  disparities: funds and assistance are not distributed equitably. It should immediately be added that UNHCR is hardly to blame for this, since it operates on the basis of voluntary contributions, most of which are provided by very few donor states, who are, consequently, in the position to pull the strings, illustrated by the level of earmarking practised by donors, to wit, a fairly consistent 80% of total contributions.[2]  As a result, some refugee situations attract sufficient money, whilst others do not: the disparity that resulted from the massive injection of staff and funds in the former Yugoslavia, which necessitated scaling down assistance in less crises, is a case in point.[3]  UNHCR could take the lead by devising a distributive mechanism that allocates the resources it attracts in more equitable manner. Such a mechanism could, for instance, be based on such parameters as the balance between the size of host states, in terms of population and GNP, and the number of refugees they are called upon to host.  In the absence of a more structural distributive mechanism that adjusts the consequences of the fact that the 1951 Convention and 1967 Protocol do not comprise one, UNHCR could mitigate those consequences. Since UNHCR is not a party to the 1951 Convention and the 1967 Protocol but is called upon to act on behalf of the international community, it could be argued that UNHCR is bound to do that anyway. Its Statute provides that UNHCR shall administer any funds, public or private, which it receives for assistance to refugees and shall distribute them among the private and, as appropriate, public agencies that it deems best qualified to administer such assistance.[4]UNHCR, in other words, is called upon both to administer and distribute funds, and it should do so, as a United Nations agency, in an equitable manner,  bearing in mind that the Statute also provides that UNHCR’s work shall be of an entirely non-political character.This would entail a different relationship with the major donor states. Securing a fair distribution could link up with proposals that were developed with reference to UNHCR’s global responsibilities and the expectations of the international community, and could seek to broaden the agency’s funding base by means of a 30 per cent base level model  –  the 30 per cent refers to the desire to fund UNHCR’s annual budget by means of a 30 per cent contribution from as many states as possible  –  that attempts to attract more donor states and secure a financial contribution that is commensurate with each government’s capacity. (The model includes the UN scale of assessment to 30 per cent of UNHCR’s annual budget, weighted according to the average contribution of a state over the past 10 years, or its contribution in the most recent financial year, and takes into consideration the contribution already made by developing countries hosting refugees.) This could constitute a first step towards a system of assessed contributions from states members of the United Nations (that is, in lieu of the current way of fundraising by means of special appeals, which has been characterized as equivalent to spot contracts between UNHCR and donor states, since sequential obligations are lacking). Such a role for UNHCR would require a more equitable allocation of the resources it has at its disposal. Public UNHCR documents regarding its programme budgets do not disclose the distributive principles that guide the various allocations it makes. The annual programme 2009, for instance, provides that Asia and the Pacific are allocated USD 164,941.5 and Europe USD 126,349.6 whilst the population of concern to UNHCR in both regions are respectively 7,249,450 (including 950,780 refugees) and (Europe) 3,868,640 (including 1,366,720 refugees).[5]Although those funds arguably

Challenges to the convention

Well over two-thirds of the world’s refugee populations are hosted in developing countries. Their stay there is by no means temporary. Some 90 percent of all refugee situations are protracted, with 6.2 million refugees in exile for over ten years, and nearly half of them for more than twenty years. [6]  Entire generations have never known the only country they can legally call home. Often denied legal residency or citizenship in their country of asylum, hundreds of thousands of refugees live their lives confined to refugee camps, without hope of a more durable solution.  For the countries hosting them, and particularly for those developing countries with the largest refugee populations, the costs of doing so are more than their fragile economies can sustain. While humanitarian assistance for refugees helps to alleviate this burden, host countries point out that there are additional costs that this assistance does not cover, costs which are becoming more diffi cult to bear. Seven of the ten countries hosting the largest number of refugees, measured in relation to their GDP per capita, are Least Developed Countries (LDC), mostly located in sub-Saharan Africa. Their debt increases along with their population and rates of unemployment, while their economies experience low or negative growth, often rendering them ill-equipped to address the many social problems that plague their communi- ties. They see refugees as bringing additional problems and, as the duration of their presence lengthens, the impatience of host communities grows. Antirefugee sentiment can be fuelled by the environmental damage that frequently follows the influx of large refugee communities. Deforestation, soil erosion, lower water tables, pollution of water sources, over-cultivation and exploitation of grazing lands, poaching and illegal fishing are often the unforeseen consequences and least addressed costs of hosting refugees and can lead to serious tensions between refugees and local communities.  Hostility towards refugees can also be heightened when the conflict that drove them across borders follows them and threatens the safety of local towns and villages. Poorly resourced and managed refugee camps that can be used to channel guns, drugs and human trafficking pose a threat to the security of surrounding communities. Even in the absence of these security threats, resentment directed at refugees can develop when the international assistance provided to refugees is seen as providing a better quality of life than that of local populations.  On the other hand, although less visible and often officially denied, hosting refugees can also bring benefits. International humanitarian agencies frequently invest heavily in the construction, rehabilitation and maintenance of roads, bridges and airstrips that are essential to the delivery of material relief and refugee services. Improved infrastructure can contribute to expanded travel, communication, trade and services to and from these areas. Other economic spin-offs include increased demand for locally produced goods and labour to meet the needs of the refugee communities and international aid operations. Refugees themselves can also bring needed skills to local communities. Moreover, revenues from income and value-added taxes as well as custom duties can also be positive economic by-products of hosting large refugee populations.  Gains can also be measured by improved health care and education facilities where these are also open to local communities. In some refugee hosting areas in Tanzania, for example, health indicators for communities hosting refugees are well above the national average, while schools have improved and enrollment increased as a direct consequence of the provision of international aid to refugees and local communities in the districts. Moreover, local communities have seen improved access to clean and safe water.[7]

  Even where the economic effects on balance rest on the positive side of the ledger, because so many host communities still remain among the least developed in the world, local politicians can be quick to lay blame on dis- enfranchised refugees. As in many countries all over the world, anti foreigner sentiment is relatively easy to tap and is manipulated as a powerful political tool. Fed up with unrelenting underdevelopment, and clearly aware that they host a disproportionate share of the world’s displaced solely on account of proximity, many host governments pursue policies that deny and/or jeopardise the security of refugees and asylum seekers in a bid to have them return home.

Limitation Of the Convention

Changes in the contemporary world, such as climatic changes endemic food Security, over population, technological advances and terrorism which enable people to communicate more easily has added on to the increasing no of refugees and thus forced changes in policies and practices which deal with the influx. These issues are in inclusion to limitations engrained in the convention.

    War, internal disturbances, natural disasters and economic strife have all been the cause of mass displacement of populations since the end of the Second World War. The 1951 Refugee Convention affords protection for those who cross a border, but there is no specific legally binding instrument for internally displaced persons (IDPs). The inadequacy of this situation was recognised by former United Nations Secretary General Boutros Boutros-Ghali ‘It is inadmissible that persons who are able to cross a border benefit from the rules of international law while those who have not been able to leave their country and may be just a few hundred metres away should remain without protection’.  Furthermore, ‘ National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction ’. This has meant that the protection of IDPs has remained largely unaddressed by the international community, despite the fact that they often live in desperate conditions and are the victims of ongoing violations of their human rights. A s of December 2007, there were an estimated 26 million IDPs in the world. The largest internal displacement situations are affecting Sudan, Colombia, Iraq, the DRC and Uganda. Of these, 11.3 million remain without signifi cant humanitarian assistance from their government and 9.3 million are faced with governments that are either hostile or indifferent to their protection needs.[8]   The appointment in 1992 of Francis Deng as the UN Representative on Internal Displacement has brought the failings of their protection to the attention of the international community. It has not, however, changed the fact that primary responsibility for their protection remains in the hands of the national authorities. However, the development of UN mechanisms and the publication in 1998 of the Guiding Principles on Internal Dis- placement have led to heightened awareness. There has been a vast increase in the number of national laws and policies setting out protection regimes specific to internally displaced persons. Prior to the Guiding Principles, Azerbaijan, Colombia and Georgia had internal displacement laws. Now, over thirteen countries have developed laws or policies relating to IDPs.  The Guiding Principles remain soft law and, as such, are non-binding. However, they explicitly set out in one document the international human rights obligations that are binding through international treaties and how these obligations are applicable to situations of internal displacement. This means that the Guiding Principles are an excellent tool for the development of national policies and laws on internal displacement. In and of themselves, they remain of very little legal value, but they remain the single most important source of standards for states to implement at the domestic level.  Despite these advances, without effective implementation and an independent judiciary, as well as dissemination and awareness, these national laws remain pieces of paper that only give the impression that measures have been taken. If individuals are not provided with effective mechanisms to access their rights, and if governments do not develop systems to review their effectiveness, then we are little better off than before the national policies were developed. To allow these policies to be developed but badly implemented permits governments to put up a smoke screen to shield them from their responsibility to protect. This article will consider the cases of Colombia, Turkey and Angola to determine the scope of the laws, their concurrence with international principles, as well as their practical effectiveness for those displaced.

State Policies

Even though there are certain standards to be set up, the implimentation of the refugee protection is in the hands of the individual states at a grounded level. The countries both Africa & Central America there have been the recognition that the convention was not competent to cover the flower of refugees into their regional protocols developed address these limitations. Some of these were the Cartagene Declaration of 1948, that includes those flecing their countries due to violation of Human rights.

    There have been several methods used to develop national policies on internal displacement. Countries such as Liberia have adopted the Guiding Principles as a whole.[9]  However, the Guiding Principles, as their name indicates, were developed as abstract principles, intended to guide the development of national policies. They were never intended to be implemented as such. In order for the law to be effective, it is necessary for it to set out how it will be applied to a country’s specific judicial system, as well as to develop the framework for effective implementation and dissemination. Although this method means that national policy on internal displacement is in total concurrence with international principles, it does not allow for national variations in needs, nor does it provide the population with any ownership of the law, as there is generally no, or very little, consultation process involved. A law that allows the government to say that it is in line with international principles can remain, at the same time, ineffective for the people it purports to protect if it is not solidly grounded in their needs. The Guiding Principles set out norms; however, they do not set out the implementation and dissemination aspects necessary for the rules to be applied. For a law to be effective, it is necessary for it to cover aspects such as institutional responsibility for the effective implementation and monitoring of each rule. If the law does not establish who is responsible within the government to ensure the provision of access to food and education, for example, it remains impossible for IDPs to claim their rights. Further, it makes it more difficult for government institutions to take action on the back of the law if they have not been provided with a clear mandate so to do.  A second method has been the development of a national policy that covers a specific right or that deals with a particular cause of displacement. This is the most widespread system. Used by countries such as Angola and Turkey, these laws tend to have a very well developed implementation system that addresses the specific needs of individuals affected, as well as set- ting out implementation and dissemination methods. The Turkish  ‘ Law on the Compensation of Damages that Occurred due to Terror and the Fight Against Terror ’  addresses the specific problems of restitution and reparation set out in Principle 29 of the Guiding Principles.  This method allows for a participatory method of development and implementation and can provide for ownership of the policy by the affected population. However, it does not cover other aspects of protection, such as protection against dis- placement. This leaves vast gaps in the protection regime. Furthermore, Compensation Law 5233 limits compensation and restitution to those dis- placed as a result of terror or the war on terror.

Steps to be taken

    Real estate millionaire Jason Buzi launched his idea for a “Refuge Nation” in the global media. The basic premise is not new: to buy an under populated area of land somewhere in the world and turn it into a territory for the world’s refugees to begin a new life. It combines the historic precedent of the origins of Buzi’s native Israel coupled with the visionary idealism of his Silicon Valley heritage. He argues that in a time of increasing need for refugee protection but declining political tolerance of refugees, radical solutions are needed. This clearly states the condition of refugees in world and need to take effective steps for Refugee welfare.

UNHCR’s  Convention  Plus Initiative

In September 2002, the High Commissioner for Refugees outlined the contours of a new initiative: the Convention Plus initiative, which set out to develop a normative framework for global burden-sharing. It proceeded from the assumption that the present refugee law regime –   in this context, the 1951 Convention relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees[10]  –  was not suffi cient to cope with current needs. Three years later, the initiative ended without having accomplished its goal. Besides the fact that the Convention Plus initiative failed to address the question of why states parties to the present refugee regime should commit themselves to burden-sharing, the Convention Plus initiative was doomed to fail from the outset for systemic reasons. It was a futile attempt at piecemeal engineering where structural adjustment was required. In addition, the initiative placed UNHCR on a par with the states parties to the relevant instruments, disregarding UNHCR’s own distinct responsibilities. Since burden-sharing constitutes a pressing issue, which will consequently remain on the agenda until properly addressed, it is worth dwelling on this past attempt to secure equitable burden-sharing among states from the perspective of the regime itself, the parties to it, and the separate responsibilities of UNHCR.

Special agreements  The category of  ‘ special agreements ’  was identified as the legal vehicle to realize the objectives of Convention Plus. The designation ‘ special agreement’   derives from Article 8 sub (b) of UNHCR’s Statute: the High Commissioner shall provide for the protection of refugees falling under the competence of his Office by:

 Promoting through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection.

 UNHCR practice demonstrates that very few  ‘ special agreements ’  have been concluded that improve the situation of refugees.   Most of the  ‘ special agreements ’  that have been concluded are calculated to reduce the number of refugees requiring protection. The majority of these agreements concern voluntary repatriation,  and Convention Plus in- tended to build on the experience gained from the voluntary repatriation agreements:‘ Convention Plus special agreements ’  or  ‘ Convention Plus agreements ’  would supplement the 1951 Convention.

The need to involve more states than the traditional few with whom individual special agreements are concluded was taken a step further, possibly inspired by the desire or need to resort to instruments that are not necessarily legally binding, and led to the  ‘ Comprehensive Plans of Action’   (CPAs). CPAs were developed to address specific and complex refugee situations in Latin America (CIREFCA, 1989), Indo-China (the Comprehensive Plan of Action for Indo-Chinese Refugees, 1989) and the Commonwealth of Independent States (the CIS Conference on Refugees and Migrants, 1996). CPAs were considered to be particularly suitable for addressing specific refugee situations, especially by states  ‘ having a stake in the solution of these particular situations, such as countries of origin, countries of asylum, resettlement countries, as well as humanitarian and development actors ’  whilst  ‘ the roles and responsibilities of UNHCR and other regional and international organisations would also be delineated in such plans’.  The ‘ refugee situations’   that were considered suitable for the  “  systématique”    or methodology’   of CPAs were situations that involved large outflows of refugees.  CPAs would at the same time constitute the background, the larger framework within which agreements with a more limited scope could be concluded, such as tripartite agreements on voluntary repatriation.

The Head of the Convention explained that at first the ambition was to develop ‘ a  new breed of “ special agreements” ’ .  Pursuing the conclusion of special agreements was, however, abandoned, apparently on account of a lack of familiarity with these agreements. ‘ Special agreements ’  are merely agreements which are a familiar phenomenon. Moreover, many special agreements have actually been concluded in the realm of international refugee law, especially regarding voluntary repatriation, as a result of which they can hardly be considered to constitute a new and unfamiliar breed. The idea of pursuing new CPAs was aban- doned too, in recognition of the fact that such Plans ‘ tend to respond to a political momentum, which refugee issues alone cannot generate ’. The original approach was, with hindsight, characterized as a form of  ‘ pushing the limits of international refugee law from the inside out ’ . It was exchanged for an alternative approach, which was characterized as ‘ w orking from the outside in’ ,  meaning: influencing non-refugee specific instruments.  Following this new approach, Convention Plus was envisaged to ‘ materialize in development aid agreements plus; poverty reduction strategies plus; readmission agreements plus; and labour migration agreements plus ’.

[1]Convention relating to the Status of Refugees, Article 5.

[2] UN document. EC/58/SC/CRP.25, para’ 3’.

[4]Statute UNHCR, Article.10

[5]‘ UNHCR biannual programme budget 2008-2009 (revised) ’ , para. 121 & at pg- 68.

[6]2006 UNHCR Statistical Yearbook; Chapter V  ‘Asylum And Refugee Status Determination’

[7]IJRL, Oxford Journal ‘International Refugee Protection Challenges and Opportunities’(2007)

[8]‘Internal Displacement Global Overview of Trends and Developments in 2007’  (IDMC, Norwegian Refugee Council, Apr. 2008)

[9]Human Rights Brief, Winter 2006, A Developing Trend: Laws and Policies on Internal Displacement

[10] IJRL, Oxford Journal  Doomed to Fail from the Outset? UNHCR’s Convention Plus Initiative Revisited  ‘’(2009)