Displacement and human rights: current dilemmas in refugee protection.
An unprecedented number of refugees are fleeing persecution -- approximately 19 million, according to the United Nations High Commissioner for Refugees (UNHCR).(2) An additional 24 million people are displaced within their home countries, due to armed conflict or forced relocation.(3) These are only part of the estimated 100 million migrants worldwide who move for a variety of reasons, ranging from poverty and economic insecurity to population growth and environmental degradation.(4)
Yet increasing numbers of commentators and advocates view the international treaty regime that protects refugees -- of which 123 states are now members(5) -- as inadequate to ensure respect for the basic human nights of those forced to migrate. A more comprehensive and effective international refugee regime is needed to address such disparate elements of the present dilemma as guaranteeing initial asylum to those in flight from persecution and violence, respecting the human rights of asylum-seekers (including the right to be free from arbitrary detention), determining equitably who is entitled to protection and resettling refugees in need of new permanent homes (including repatriation and/or resettlement in another country). Many countries, however, far from wanting to develop a new regime, do not even adhere to the existing standards.
THE REFUGEE CONCEPT UNDER INTERNATIONAL LAW
The Convention Definition, Asylum and Non-Refoulement
The term "refugee" has a specific legal connotation. The 1951 United Nations Convention(6) and its 1967 Protocol,(7) which expanded the temporal and geographic coverage of the Convention, together define "refugee" as a person who is outside his or her country of nationality and who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.(8) If an individual does not fit this definition, then he or she is not entitled to protection under the Convention or Protocol; such protection includes the right not to be returned to a place of persecution9 and various civil, economic and social rights.(10)
Traditionally and by definition, therefore, refugee protection is reserved for those who have left their countries of origin. The decision to leave and cross a national border transforms an individual into an object of international concern under refugee law when he or she has lost, or been deprived of, protection under law in the country of origin, and is in need of another source of protection from persecution.
Individuals who are driven from their places of origin, but do not cross a national boundary -- internally displaced persons -- cannot appeal to international legal standards governing refugees, even if they fear persecution or other serious harm. Thus, while often outnumbering and having similar protection needs as refugees, internally displaced persons have no guarantee of freedom from forced return nor any of the civil, social and economic entitlements set forth in the refugee treaties.(11)
Occasionally, however, at the request of the Secretary-General and/or the General Assembly of the United Nations, the Office of the United Nations High Commissioner for Refugees extends its mandate to such displaced persons under a "good offices" jurisdiction, which is based on the UNHCR statute.(12) The statute provides UNHCR with a mandate for assistance and protection outside the framework of international refugee treaties. Acting through the United Nations, governments have also established special authorities to assist displaced persons, such as the United Nations Border Relief Operation (UNBRO). UNBRO was created in 1982 along the Thai-Cambodian border to coordinate assistance to Cambodians held in border camps.
In addition, those individuals who cross a border while fleeing war or civil disturbance are outside the scope of international refugee law; they are also denied legal protection from return and the other rights promulgated in the treaties. Such persons are considered not to have a sufficiently individualized fear of persecution. Member states of the Organization of African Unity (OAU), however, subscribe to a broadened refugee definition, which includes those displaced by war and civil disorder.(13) Governments and refugee experts in Latin America(14) and Asia(15) also recognize the merit of a broadened definition addressing causes such as external aggression or civil conflict. But even in these regions, such arrangements have not yet been adopted.
Upon leaving his or her country, a refugee becomes subject to the jurisdiction of the authorities in the country of reception. Under international refugee law, refugees have no categorical right to asylum. The term "asylum" is not defined in the refugee treaties,(16) but one may understand it to mean the act of providing "protection" to refugees seeking entry to a territorial jurisdiction. One may interpret the concept of "protection" -- again not defined in the refugee treaties -- as the act of upholding fundamental human rights, such as the core rights declared in the covenants on civil and political rights,(17) and on economic, social and cultural rights.(18) A host country's treatment of refugees must respect these basic rights, including the right not to be returned to a territory where one may be subjected to persecution. This right -- embodied in the concept of non-refoulement(19) -- imposes a duty upon host governments to protect refugees present within their borders. This limit on sovereign prerogative is the foundation of virtually all refugee protection.(20) Host countries' failure to provide tolerable conditions of asylum can force refugees to return prematurely and thus undermine the cardinal principle of non-refoulement.(21) The governmental Executive Committee, which oversees the work of UNHCR, stresses that all individuals given refuge be allowed to enjoy humane standards of treatment.(22) Refugees thus should be permitted to remain in the host country, at least temporarily, under living conditions that meet their essential humanitarian needs. The principle of non-refoulement prevents states from turning away refugees at a border and, in certain circumstances, may even limit a country's power to intercept refugees en route to its territory and return them to their place of origin.(23)
Regardless of whether host governments recognize persons seeking asylum as "refugees" or classify them somewhat more pejoratively as "illegal aliens," states must provide essential legal protection and respect basic individual rights. The standard of treatment to which noncitizens are entitled is generally the same as that applied to a state's treatment of its own nationals.(24) Whether a nonnational's entry into a state was lawful affects only his or her claim to immigration status or other benefits above and beyond the right to essential protection to which all persons within a state's borders are entitled.(25)
Protection Under Human Rights Treaties
In addition to the U.N. Convention and related treaties, a number of human rights treaties -- which speak in broad terms of minimum standards of treatment for all persons -- extend to refugees seeking asylum, who are still entitled to fundamental rights although they have left their home countries. Concern with basic individual rights is reflected in the Charter of the United Nations,(26) and is clearly expressed by the Universal Declaration of Human Rights.(27) Although the Declaration does not contain a specific provision regarding treatment of non-nationals, it can be inferred that they are covered, because the Declaration "... is couched in universal terms which either state affirmatively that 'everyone' shall be entitled to such and such a right, or provide negatively, from the viewpoint of states, that ~no one' shall be subjected to a particular deprivation."(28) It follows that, except for those provisions which explicitly grant benefits solely to nationals, the Declaration extends its protection to refugees.(29) Furthermore, in 1985, the U.N. General Assembly adopted the Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in Which They Live,(30) guaranteeing security of person and freedom from arbitrary arrest or cruel, inhumane or degrading treatment.(31)
Although the United Nations has not adopted a declaration dealing specifically with refugees who are women or children, several instruments extend protection to them. The UNHCR Executive Committee has noted that most of the world's refugees are women and children, and has recognized that female refugees are particularly vulnerable to physical violence, sexual abuse and discrimination.(32) Accordingly, UNHCR recommended that states establish programs to ensure their physical safety and equality of treatment.(33) In 1974, the General Assembly drafted a Declaration on the Protection of Women and Children in Emergency and Armed Conflict, which proclaims that women and children belonging to civilian populations affected by such disorders shall not be deprived of shelter, food, medical aid or other fundamental rights, in accordance with the provisions of the human rights treaties.(34)
While the Declaration seeks specifically to address the risks to women and children in their places of origin, families that have been forced to flee their homes due to persecution in wartime also clearly require protection. So do refugee populations encamped in border areas next to war-torn territories that are frequently subjected to military aggression. Thus, the group for which the General Assembly intended to provide essential protection includes refugee and internally displaced women and children.
The view that refugee children should be protected by the countries to which they have fled can also be inferred from the Declaration of the Rights of the Child. The Declaration recognizes that children shall enjoy special protection and that "[t]he child shall in all circumstances be among the first to receive protection and relief."(35) The United Nations Convention on the Rights of the Child, adopted by the General Assembly in 1989, made this protection requirement still more explicit.(36)
Customary International Law
Countries not under treaty obligations are nevertheless still bound to observe them insofar as these instruments reflect customary international law. For example, the Universal Declamation of Human Rights,(37) the International Covenant on Civil and Political Right(38) and the Standard Minimum Rules for the Treatment of Prisoners(39) prohibit arbitrary prolonged detention. The International Court of Justice has cited the Charter of the United Nations, as well as the Declaration of Human Rights, in holding that such confinement violates international law by depriving persons of freedom of movement and by detaining them in conditions of hardship.(40) The plethora of legal instruments condemning arbitrary and prolonged detention under inhumane conditions, widely adopted by the international community and recognized by the International Court of Justice, demonstrates that customary international law prohibits such confinement. Therefore, normative precepts of international human rights law protect refugees as they do all other persons.
Refugees thus enjoy rights as a result of both specific refugee and human rights treaties and customary international law. These traditional sources of protection, including the remedy of non-refoulement, must be respected. Human rights law, both treaty-based and customary in character, protects refugees, along with displaced persons and other non-nationals. But the mechanisms to enforce human rights law, largely founded on monitoring and reporting activities, are not well-established at the international level.
As discussed previously, 123 governments have acceded to either the 1951 Convention relating to the Status of Refugees or its 1967 Protocol. But many of the world's governments have yet to subscribe formally to this universal legal regime, and UNHCR should lead an international campaign to promote state accession. Such an effort could involve appeals through diplomatic channels by the High Commissioner and her representatives as well as concerted action by governments and non-governmental organizations (NGOs).
Apart from the question of coverage under the refugee treaties, i.e., conventional refugee law, there are serious issues regarding state compliance with treaty obligations. Instances of non-compliance -- which can be assessed by considering a wide variety of refugee circumstances -- include the forced return of refugees to places where they may experience persecution, harsh treatment or detention of asylum-seekers or undue restriction of access to asylum. Governments of developed countries frequently devise such measures to deny or deter the entry of asylum-seekers from less developed countries. The UNHCR, in conjunction with governments, intergovernmental groups and NGOs, should launch an international campaign to secure full compliance with refugee treaty obligations.
The mechanisms for international refugee protection need fundamental reform to ensure a comprehensive approach. Governments, with the advice and counsel of experts and NGOs, should formulate new instruments to broaden the scope of refugee protection -- perhaps initially at the regional level and inspired by progressive national practices. Such a first step would provide a setting for the emergence of new worldwide standards. This process could begin in Latin America, a region which has already recognized broad protective principles in the 1984 Cartagena Declaration and the documents of the 1989 Central American Refugee Conference. The Conference on Security and Cooperation in Europe may provide the most comprehensive forum in Europe to formulate standards. Universal standards under United Nations auspices should follow these regional advances.
Additionally, governments, in tandem with representatives from independent organizations, should consider formulating and implementing a new instrument to address the protection and assistance needs of internally displaced persons. The ongoing work of the Special Representative of the Secretary-General to monitor and report on this issue will provide a useful vehicle for considering such a new instrument over the next two years. In this fashion, the question will remain on the agenda of various international fora and subject to action. Any new instrument should accord special attention to the unique needs of women and children.
The United Nations should consider as well the establishment of new enforcement mechanisms to secure the human rights of refugees. A U.N. court on the protection of refugees and displaced persons could accord to aggrieved individuals or representative groups a right of petition to redress violations of international refugee and human rights law, thus protecting their rights and achieving greater uniformity in the interpretation of the refugee status criteria. Whether individuals receive protection as refugees should not depend, as far as feasible, on the happenstance of their arrival in one state and not another. The current juridical mechanism for the resolution of disputes under the Refugee Convention and Protocol is limited to state-initiated actions at the International Court of Justice. This is an impractical remedy that has never been invoked.
Lastly, UNHCR declared the 1990s the "decade of repatriation" -- a traditionally preferred solution for refugees. The international community, conceived of in its widest sense to include governments, intergovernmental organizations and the independent sector, should develop guidelines that ensure that the repatriation of refugees is voluntary and that the countries to which the refugees return do not violate the basic human rights of their inhabitants on a wide scale.(41)
THE CONTEMPORARY REFUGEE DILEMMA
Even should the United Nations or regional intergovernmental organizations expand treaty protections and strengthen enforcement mechanisms, governments may still reduce the protection of refugees and displaced persons through various approaches that have been recently attempted. The end of the Cold War changed the context in which refugee protection is conceived. Governments, particularly those of Western developed countries, are increasingly treating those once considered to be refugees as unauthorized migrants. Budgetary constraints now supplant foreign policy considerations, and governments see the refugee issue not as an ideological frontline, but rather as a problem in migration management. Today, host countries consider most asylum-seekers from less-developed countries economic migrants.(42)
Contemporary policy makers often discuss one or more of three possible approaches to refugee emergencies. First is a strategy of refugee containment, including the organization of internal safety areas by governments such as those made in 1991 for Kurds in northern Iraq, and the implementation of humanitarian assistance programs in Somalia and the former Yugoslavia, sometimes with provisions for military escort. Second is the concept of burden sharing, or shifting, from one to another country of asylum, including regional screening arrangements such as those made in 1989 by governments under United Nations auspices for Vietnamese and Laotian asylum-seekers in Asia. Third is the collective effort by states to deter asylum-seekers, occurring recently in Western Europe and elsewhere.
The seminal instance of refugee containment as a modern strategy was the arrangement made for Kurdish asylum-seekers in northern Iraq. After the Gulf War ended in 1991, about two million Iraqi Kurds and Shiites, as well as Iraqis, fled and sought haven in Saudi Arabia, Turkey, Iran and northern Iraq. Saudi Arabia, Kuwait and Turkey resisted providing asylum, and hundreds of thousands of Kurds were stranded in the mountains on the Turkish border in winter. Responding to public pressure, coalition military forces and the United Nations deployed personnel to assist and protect these persons in situ in northern Iraq. Many of those dislocated have since returned to so-called "safe areas" in Iraq where the United Nations established "humanitarian centers." But as conflict continues in Iraq, it is far from certain whether these arrangements for internal protection will endure.(43)
On 5 April 1991, the U.N. Security Council adopted Resolution 688, intending to provide a basis for collective intervention in northern Iraq to address the refugee crisis. On 18 April 1991, the United Nations and the Iraqi government entered into a memorandum of understanding. This agreement, which included the provision of food and other essentials, although once extended, has since expired; opposition by the Iraqi authorities precluded renewal. Assistance activities currently continue without a formal agreement and are subject to ongoing negotiations.
The arrangements to provide internal protection to Kurdish people in northern Iraq are based on a fragile equilibrium. To the extent that coalition military forces stand ready to intervene and international organizations remain present, the Kurds in northern Iraq consider themselves protected from the Iraqi military. However, recent attacks by Iraqi forces have prompted more Kurds to flee north. Past shelling by government forces suggests that aggression remains likely. Long-term protection thus may depend on maintaining this holding pattern indefinitely.
The U.N. humanitarian action plan for Iraq for April 1993 to March 1994 requests about $500 million from donor governments, including about $50 million to deploy up to 300 U.N. guards in northern Iraq to help maintain a sense of security, to escort relief convoys and to protect U.N. staff and property.(44) As of this writing, donors have given only about $150 million to the U.N. program for Iraq, mostly earmarked for the northern region.
It is uncertain whether the extraordinary measures taken in northern Iraq can be translated into workable arrangements elsewhere in the world. Acting through the United Nations, governments have attempted analogous arrangements to provide assistance and protection in situ to would-be refugees in Somalia and the former Yugoslavia,(45) but the effectiveness of these particular arrangements remains to be seen.
What is clear, however, is that refugee containment strategies have severe limitations. Humanitarian assistance is provided to ameliorate the causes of flight and the consequences of the conflict. In addition to meeting essential humanitarian needs, the presence of international staff is intended to deter abuses and thereby provide protection. Yet, local authorities who continue to exercise jurisdiction, and who may be embroiled in civil strife, can restrict access to the concerned populations, as witnessed recently in Croatia as well as Bosnia and Herzegovina. In such situations, external authorities simply cannot guarantee respect for basic human rights. Protection can thus be illusory.(46)
Moreover, receiving countries may abuse containment strategies. U.S. Coast Guard vessels have intercepted Haitian boat people on the high seas for more than a decade. From 1981 to 1992, the U.S. Immigration and Naturalization Service summarily screened over 50,000 Haitians and, as they did not obviously appear to be refugees, returned most of them to Haiti. In May 1992, President George Bush ordered the direct return of Haitians without any inquiry into their claims of persecution. The United States has now forcibly repatriated over 5,000 Haitians in this fashion.(47) It is a policy which violates basic tenets of refugee protection, including the principle of nonrefoulement.(48) The refugees' alternative is to apply for resettlement in the United States at specially designated offices located in Haiti. However, such an internal arrangement, which the United States is seeking to substitute for territorial asylum, is clearly inadequate. Several Haitian applicants, for example, reportedly have been threatened by supporters of the de facto authorities while participating in the in-country adjudication process. Others remain in hiding from the current rulers in Haiti, afraid to seek resettlement .(49)
A program of interdiction, while generally intended to prevent unauthorized migration, can easily infringe upon the rights of refugees. Instead, U.S. authorities should conduct preliminary screening of refugees only under circumstances that ensure reliability. Such circumstances may require the possibility of confidential interviews by qualified and impartial decision makers, ordinarily after being landed in an appropriate location and permitted time to receive appropriate counseling and to present claims. Provision should also be made for an independent review of denied claims. Even more fundamentally, enough money should be invested by governments to ensure that full asylum adjudications are fair and expeditious so that such preliminary inquiries governing access to the procedure will not be needed.
Regional Arrangements to Share or Shift Burdens
Perhaps the quintessential recent regional allocation arrangement is the U.N.-sponsored Comprehensive Plan of Action (CPA), which was established to manage the outflow of Vietnamese boat people and Laotian asylum-seekers in Asia. The CPA's principal feature is the institution of screening asylum-seekers and returning those not fitting the strict definition of refugees.(50) About 70,000 Vietnamese boat people currently languish, frequently in harsh conditions, in isolated closed camps and urban detention centers in the region, including in Hong Kong, the Philippines, Thailand, Malaysia and Indonesia. Most will be denied refugee status and resettlement, and will remain confined until Vietnam permits their return.
The CPA assumes that inquiries to determine refugee status based largely on Western legal principles are possible in legal systems with no analogous provisions.(51) The experience, however, has been mixed in terms of reliability in adjudications and UNHCR is thus required to assume many decision-making responsibilities, particularly in Thailand, Malaysia and Indonesia. Moreover, the CPA is designed to deter asylum-seekers, a mandate which requires strict application of conventional refugee law. The CPA makes no provision for providing refugees with permanent asylum in the region. Nor does it permit even temporary refuge for those in need of humanitarian protection, unless their claims fall within the precise contours of the classical refugee definition.
The CPA signals the end to a relatively generous resettlement program for refugees from Southeast Asia after the Vietnam War. But as a model, the CPA has not yet been emulated in other parts of the world.(52) The fundamental question is whether such regimes contribute to or compromise the precepts of international protection and cooperation. Processing on a regional basis may introduce greater uniformity into the responses to refugee displacements. An attendant guarantee of ultimate third-country resettlement or return to the home country may secure initial asylum. Depending on the terms, such compacts can promote burden sharing. But the outcome can also be limiting and may localize and shift the burden to countries with infrastructures less capable of discharging humanitarian responsibilities.
Also, the restrictive rationale of regional arrangements can endanger genuine refugees. The manner in which many countries determine asylum claims raises particular compliance concerns. There have been positive developments in status determination in some jurisdictions, such as the United States, where there have been recent efforts to enhance asylum determination procedures. The CPA provided a virtual laboratory for developing procedural standards and safeguards in refugee adjudication. Experiments included legal counseling to asylum-seekers and developing both self-help materials for such individuals and a database of country of origin information for use by decision makers. Unfortunately, while such innovations could have advanced universal procedural standards and improved techniques, deterrent aspects of the CPA have largely frustrated such progressive developments.
States can also use regional arrangements to coordinate policies that infringe upon the human rights of refugees. In Western Europe, for example, countries striving to harmonize economic and political systems have introduced measures designed to deter asylum-seekers and limit refugee access to asylum, particularly in cases involving non-Europeans.(53) Measures may be unilateral or multilateral in character and include the narrow application of refugee protection criteria, return of individuals to countries of transit or origin identified as "safe," acceleration of adjudication procedures, imposition of visa requirements, fines against airlines for carrying passengers without proper travel documents, detention schemes and restrictions on work permission. Recent policies restricting asylum in Germany and France reflect these trends.(54) Apart from many new asylum-seekers from the former Yugoslavia, Western Europe has fewer than one million refugees, a number of whom were resettled under official asylum and admissions programs.(55) But with the relaxation of East-West tensions and the subsequent events in East Central Europe and the former Soviet Union, Western European governments now fear a flood of migrants and asylum-seekers. In 1991, Italy summarily returned Albanian asylum-seekers, and in 1993 Germany concluded agreements with Poland and Hungary providing for the return of asylum-seekers.(56)
Significantly, governments of East Central Europe, as well as the emerging new governmental structures in the former Soviet Union, are themselves enacting laws and establishing institutions to cope with larger numbers of dislocated persons, now or in the future. These include refugees from conflicts in the Caucasus and Central Asia, as well as those fleeing ethnic discrimination. The parliament of the Russian Federation recently enacted laws conferring legal status on forced migrants and refugees, and Russia acceded to the refugee Convention and Protocol. About 500,000 refugees have entered Russia -- including about 20,000 from outside of Europe.(57) But officials are most concerned about the prospect of the return of millions of ethnic Russians from the Baltic States and elsewhere.(58) Russian officials have declared their intent to establish laws and institutions that are compatible with international human rights and refugee law. Whether Russia will realize this promise remains to be seen.
Asylum-sharing arrangements in Western Europe such as the Dublin Convention(59) are an emerging form of collective deterrence. The underlying principle, with limited exceptions, is that an individual should seek asylum in the first available place. The Dublin Convention formally applies the principle to Europe, but its logic, of course, extends to other continents. Many European countries' policies of enforcing return to "safe" countries of transit express this principle. Such arrangements tend to reinforce the concept of a "fortress Europe," with various immigration controls arrayed against asylum-seekers who come from developing countries.
International cooperation is desirable in managing refugee emergencies. Comprehensive regional arrangements for refugee assistance and protection could help realize this principle. But such arrangements are unlikely until regions implement systems that employ equally accurate methods for determining refugee status. Specifically, asylum claims must be resolved in a reliable and fair manner, including adequate appeal and review procedures, and NGOs must be involved meaningfully in designing and implementing such arrangements. The debate over accelerated procedures ordinarily involves both minimum international standards, such as those explicitly incorporated under the CPA, and national notions of fairness. The legal cultures of particular nations, of course, may demand more procedural safeguards in status determination than minimum universal standards would strictly require.
Deterrent measures, such as alien detention schemes, are also directed against asylum-seekers by governments hoping to keep them at home. Signatories of the refugee treaties, such as the United States and several Western European countries, automatically detain many arriving asylum-seekers. Hong Kong, while not a signatory to the treaties, has also arbitrarily detained nearly 40,000 Vietnamese boat people. Unnecessary restrictions on movement abound in refugee arrangements in many parts of the world. To the extent that confinement is arbitrary or unnecessary to ensure removal or protect the community, such detention schemes may violate international refugee and general human rights law.(60) Given the magnitude of the violations, UNHCR should undertake a special initiative at the international level to uncover and eliminate abusive detention of asylum-seekers. This should be part of a larger campaign to force host countries to respect refugees' human rights.
There should be reform of undifferentiated deterrence, policies which encourage refugees either to stay in or return to their home countries and run the risk of persecution, or to go elsewhere and shift the burden to other countries of asylum. Specifically, host countries should not detain asylum-seekers automatically, but hold them only when necessary to protect the community at large or to prevent them from absconding. Host countries should organize detention facilities, including camps, in a fashion that does not infringe upon basic human dignity. They should provide detainees with meaningful access to legal assistance where available. Furthermore, they should standardize release requirements, including bail provisions, and should endeavor to fix them at the minimum levels necessary to prevent absconding. Lastly, they should not detain minors.
The need to strengthen refugee protection at the international level is pressing. Governments, acting through the United Nations and regional intergovernmental organizations, must not only expand the coverage of international law, but also improve its enforcement. Recent approaches by states to cope with asylum-seekers, whether unilateral or collective in character, that violate refugees' human rights must be curbed.
Until governments establish comprehensive international standards and meaningful mechanisms, differential treatment of those in need of protection will continue. Many asylum-seekers will simply remain insecure and subject to human rights violations. The international community in its widest sense must therefore act immediately to secure protection for the world's dispossessed. (1.) Elements of this article, specifically the discussion of the refugee concept, are adapted from an earlier article that appeared in the International Journal of Refugee Law and are reprinted by permission of Oxford University Press. Other elements are adapted from a chapter in human Rights: An Agenda for the Next Century (1994), which is reprinted by permission of The American Society of International Law. (2.) See UNHCR, The State of the World's Refugees (New York: 1993) p. 1. See also UNHCR, media release, 4 October 1993, quoting Sadako Ogata, United Nations High Commissioner for Refugees. The abbreviation "UNHCR" refers, as appropriate, to the High Commissioner for Refugees, the person, as well as the Office of the United Nations High Commissioner for Refugees, the specialized U.N. agency mandated to assist and protect refugees. As the magnitude of the refugee crisis has increased, so has the international institutional response. As an agency, UNHCR, which has a staff of 2,986 persons working in 111 countries, received more than $1 billion in 1993. (3.) UNHCR, The State of the World's Refugees, p. 1. (4.) United Nations Population Fund, The State of World Population: 1993 (New York: 1993). (5.) UNHCR, List of State Parties to the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, 30 September 1993. (6.) United Nations Convention relating to the Status of Refugees, adopted by the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, convened under U.N. General Assembly (UNGA) res. 429(V), 14 December 1950, adopted 28 July 1951, entered into force 22 April 1954: United Nations Treaty Series (UNTS), 189, no. 2545, p. 137, text in UNHCR, Collection of International Instruments Concerning Refugees (1979) p. 10. (7.) United Nations Protocol relating to the Status of Refugees, adopted by ECOSOC res. 1186 (XLI), 18 November 1966; see also UNGA res. 2198 (XXI), 16 December 1966, entered into force 4 October 1967: UNTS, 606, no. 8791, p. 267, text in UNHCR, Collection, p. 40. As of this writing, 123 states are parties to the Convention, Protocol or both. See note 5. (8.) Art. 1 A(2), 1951 United Nations Convention relating to the Status of Refugees. (9.) See note 10. (10.) These rights include non-discrimination, practice of religion, retention of property, freedom of association, access to courts, employment, entitlements to share in any rationing schemes, housing, public education, public assistance, social security, freedom of movement, identity papers, travel documents, transfer of assets and facilitation of naturalization. See note 6. (11.) See note 10. (12.) Statute of the Office of the United Nations High Commissioner for Refugees, adopted by UNGA res. 428(V) December 1950. See Lawyers Committee for Human Rights and Americas Watch, El Salvador's Other Victims: The War on the Displaced (1984) pp. 252-55, discussing instances in the Sudan, Guinea-Bissau, Mozambique, Angola, Laos and Chad, where the UNHCR provided assistance to displaced persons between 1972 and 1981. See also UNGA res. 37/175, 38/91 and 40/133, concerning assistance to displaced persons in Ethiopia, and UNGA res. 39/106 and 40/136, concerning assistance to displaced persons in Chad, for more recent examples of mandate extensions in 1982, 1983, 1984 and 1985. A recent extension of UNHCR's mandate regarding assistance to internally displaced persons concerns the former Yugoslavia. See UNHCR, Information Notes on Former Yugoslavia (January 1993). See also The State of the World's Refugees (New York: UNHCR, 1993). (13.) Article 1(2), OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted by the Assembly of Heads of State and Government at its Sixth Ordinary Session on 10 September 1969, entered into force 20 June 1974: UNTS, 1001, no. 14691, p. 45; text in UNHCR (1979) p. 193. In general, movements of people caused by deforestation, desertification and other environmental factors would not be covered by either the expanded or conventional refugee definitions. (14.) The Cartegena Declaration on Refugees (published as a pamphlet by UNHCR, also contained in La Protection Internacional de los Refugiados en America, Central Mexico y Panama: Problemas Juridicos y Humanitarios, Universidad Nacional de Colombia, p. 332); part II (containing the conclusions) also reproduced in Annual Report of the Inter-American Commission on Human Rights, 1984-85, OEA/Ser.L/V/II.66, Doc. 10, rev. I, pp. 190-93. See also H. Gros Espiell et al., "Principles and Criteria for the Protection of and Assistance to Central American Refugees, Returnees and Displaced Persons in Latin America," International Journal of Refugee Law, 2 (1990) p. 83 (background document prepared for the International Conference on Central American Refugees in April 1989). (15.) See International Institute of Humanitarian Law, Report of the Working Group on Current Problems in the International Protection of Refugees and Displaced Persons in Asia (San Remo, Italy: 1981). (16.) The "right to seek and to enjoy in other countries asylum from persecution" is proclaimed without elaboration in Article 14 of the 1948 Universal Declaration of Human Rights. Universal Declaration of Human Rights, adopted and proclaimed by the United Nations, UNGA res. 217(A)(III), 10 December 1948, text in UNHCR, Collection, pp. 99, 101. (17.) 1966 International Covenant on Civil and Political Rights, adopted by UNGA res. 2200 (XXI), 16 December 1966, entered into force 23 March 1976: U.N. GAOR Supplement 21, no. 16, p. 52, U.N. doc. A/6316 (1966); text in UNHCR (1979) p. 104. The human rights from which no derogation may be made by treaty, or which have achieved the status of customary international law, are ordinarily considered "basic," "core" or "fundamental" rights. See note 19. (18.) 1966 International Covenant on Economic, Social and Cultural Rights, adopted by UNGA res. 2200 (XXI), 16 December 1966, entered into force 3 January 1976: U.N. GAOR Supplement, 21, no. 16, p. 49, U.N. doc. A/6316; text in UNHCR (1979) p. 128. (19.) Non-refoulement provisions are included in several U.N. documents, including the 1951 Convention and its 1967 Protocol; see art. 33. A similar provision is also in art. 3 of the Declaration on Territorial Asylum, adopted by UNGA res. 2312 (XXII), 14 December 1967. U.S. domestic law reflects this policy; see U.S.C. 8, [sections]1253(h)(1988). Even states not parties to U.N. instruments are bound to respect non-refoulement as a fundamental principle of customary international law; see G.S. Goodwin-Gill, The Refugee in International Law (1983) p. 97; Conclusion no. 6 XXVIII, in UNHCR Conclusions on the International Protection of Refugees adopted by the Executive Committee of the High Commissioner's Programme (1980) p. 14; Report of the 28th Session of the UNHCR Executive Committee (1977): U.N. doc. A/AC./549, para. 53. (20.) See A.C. Helton, "Asylum and Refugee Protection in Thailand," International Journal of Refugee Law, 1 (1989) pp. 21, 39; see also note 19. (21.)At times, countries have instituted policies towards asylum-seekers specifically designed to discourage those who would seek refuge within their borders. See Helton (1989). (22.) Conclusion no. 19 (XXXI) on Temporary Refuge, adopted by the UNHCR Executive Committee in 1980, states: "The Executive Committee (a) Reaffirmed the essential need for the humanitarian legal principle of non-refoulement to be scrupulously observed in all situations of large-scale influx;... (c) Took note of the extensive practice of granting temporary refuge in situations involving a large-scale influx of refugees;... (e) Stressed the exceptional character of temporary refuge and the essential need for persons to whom temporary refuge has been granted to enjoy basic humanitarian standards of treatment...." UNHCR (1980) p. 41. (23.) But see Sale v. Haitian Centers Council, Supreme Court, 113 (1993) pp. 2549, 2562-67 (U.S. government program to intercept on the high seas and summarily return Haitian boat people is not a violation of Article 33 of the refugee treaties). See also notes 19 and 20. (24.) See Helton (1989) p. 41; C. Amerasinghe, State Responsibility for Injuries to Aliens (1967) p. 44. See also Barcelona Traction and Light Co., I.C.J. Rep. (1970) p. 32 (state bound to protect foreign nationals admitted into its territory). (25.) Helton (1989) p. 42. (26.) See U.N. Charter, arts. 1, 2,55, 56. (27.) See note 16. (28.) Helton (1989) p. 43, quoting R. Lillich, Human Rights of Aliens in Contemporary International Law (1984) p. 42. (29.) Other treaties include the 1966 Covenant on Civil and Political Rights, UNGA res. 2200(XXI): U.N. doc. A/6316 (1966), which protects the right to life, to be free from cruel, inhuman or degrading treatment, punishment or torture, the right to be treated with humanity and freedom of movement; the 1969 American Convention on Human Rights: I.L.M. 1969 (1970) p. 673, which declares the right to humane treatment and that "every person has the right to have his physical, mental and moral integrity respected." See also America Declaration of Rights and Duties of Man, 2 May 1948, O.A.S. Off. Rec. OEA/Ser.L./V/II.23, doc. 21, rev. 6 (1979). (30.) UNGA res. 40/144,13 December 1985. (31.) ibid., articles 5 and 6, respectively. (32.) See UNHCR Executive Committee Conclusion no. 39 (XXXVI) on Refugee Women and International Protection (1985); UNHCR (1980) p. 84; Conclusion no. 54 (XXXIX) (1988), text in International Journal of Refugee Law, 1 (1989) p. 253. See also Conclusion no. 60 (1989), text in International Journal of Refugee Law, 2, p. 152; A.B. Johnsson, "The International Protection of Women Refugees," International Journal of Refugee Law, 1 (1989) p. 991; N. Kelley, "Report on the International Consultation on Refugee Women, held in Geneva, 15-19 November 1988," International Journal Of Refugee Law, 1 (1989) p. 233. On children, see UNHCR Executive Committee Conclusion no. 47 (XXXVIII) (1987), text in International Journal of Refugee Law, 1 (1989) p. 257; Conclusion no. 9 (XL) (1989), text in International Journal of Refugee Law, 2 (1990) p. 150. (33.) Conclusion no. 39, note 32, para.(h). (34.) Declaration on the Protection of Women and Children in Emergency and Armed Conflict: UNGA res. 3318(XXIX), 14 December 1974. (35.) Declaration of the Rights of the Child: UNGA res. 1386 (XIV), 20 November 1959. (36.) UNGA res. 45/24,20 November 1989. (37.) See note 16, art. 9. (38.) See note 17, art. 9(l). (39.) Standard Minimum Rules for the Treatment of Prisoners, adopted at the first United Nations Congress on the Prevention of Crime and Treatment of Offenders; approved by ECOSOC resolutions 663 (XXIV), 31 July 1957 and 2076 (LXII), 13 May 1977. See also Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in Which They Live, see note 30. (40.) United States Diplomatic and Consular Staff in Tehran, I.C.J. Rep. (1980) p.42. (41.) See, e.g., Lawyers Committee for Human Rights, General Principles relating to the Promotion of Refugee Repatriation (New York: 1992). (42.) See Lawyers Committee for Human Rights, Uncertain Haven: Refugee Protection on the Fortieth Anniversary of the 1951 United Nations Convention (New York: 1991). (43.) See Lawyers Committee for Human Rights, Asylum Under Attack: A Report on the Protection of Iraqi Refugees and Displaced Persons One Year After the Humanitarian Emergency in Iraq (New York: 1992). (44.) U.N. Department of Humanitarian Affairs, United Nations Inter-Agency Humanitarian Programme in Iraq (New York: 1993). (45.) See Lawyers Committee for Human Rights, Protection by Presence? The Limits of United Nations Safekeeping Activities in Croatia (New York: 1993). (46.) One consequence of the Iraq exercise has been the establishment of the office of a Humanitarian Coordinator at the United Nations to promote more effective coordination among involved U.N. entities. But its effectiveness is uncertain. For example, the Coordinator has not played a significant role in the humanitarian response pertaining to the former Yugoslavia, despite the multifaceted U. N. response mounted there. (47.) See A.C. Helton, "The United States Government Program of Intercepting and Forcibly Returning Haitian Boat People to Haiti: Policy Implications and Prospects," New York Law School Journal of Human Rights, 10 (1993) pp. 325,330-31. (48.) See notes 19 and 20. (49.) See, e.g., Americas Watch et al., No Port in a Storm: The Misguided Use of In-Country Refugee Processing in Haiti (New York: 1993). (50.) See Lawyers Committee for Human Rights, Uncertain Haven (New York: 1991) pp. 11-59. (51.) See A.C. Helton, "Judicial Review of the Refugee Status Determination Procedure for Vietnamese Asylum-Seekers in Hong Kong: The Case of Do Giau," Brooklyn Journal of International Law, 17 (1991) p. 263. (52.) Recent arrangements to allocate the responsibility to decide asylum requests in Western Europe through instruments such as the Dublin Convention are in some respects similar. See J. Bhabha and G. Coll, Asylum Law and Practice in Europe and North America (1992) at Appendix, for the text of the Dublin Convention. See note 53. (53.) See Lawyers Committee for Human Rights, Asylum in Decline: A Briefing Paper on Restrictive Measures Taken by Western European Governments to Limit the Remedy for Refugees of Asylum from Persecution (New York: 1993). (54.) ibid. (55.) UNHCR, The State of the World's Refugees (New York: 1993) pp. 151-52. Nearly four million persons have been displaced as a result of the conflict in the former Yugoslavia, including about one million who have fled and sought asylum in various European countries. (56.) See "Western Europe Is Ending Its Welcome to Immigrants," New York Times, 10 August 1993, p. Al, col. 1. (57.) U.S. Department of State, World Refugee Report (1993) p. 159; UNHCR (1993) p. 152. (58.) See Lawyers Committee for Human Rights, Human Rights and Membership in the Political Community: A Note on Citizenship Laws in Estonia, Latvia and Lithuania (New York: 1993). There are nearly two million ethnic Russians in Estonia, Latvia and Lithuania. (59.) See note 52. (60.) See Lawyers Committee for Human Rights, Inhumane Deterrence: The Treatment of Vietnamese Boat People in Hong Kong (New York: 1989).
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|Title Annotation:||Refugees and International Population Flows|
|Author:||Helton, Arthur C.|
|Publication:||Journal of International Affairs|
|Date:||Jan 1, 1994|
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