In my previous blogs I have mentioned and quoted several times from the 1951 Refugee Convention. One hundred and forty-nine states have signed the Convention and/or its 1967 Protocol. Between them, these two documents “define the term ‘refugee’ and outline the rights of refugees, as well as the legal obligations of States to protect them” (see link below). The office of the United Nations High Commissioner for Refugees (UNHCR) describes itself as the “guardian” of the Convention and its Protocol:
According to the legislation, States are expected to cooperate with us in ensuring that the rights of refugees are respected and protected.
The references to “legal obligations” and “legislation” suggest that refugees should be able to have full confidence in the Convention and its signatory states to protect them. However, we should note that states are only “expected to cooperate” with UNHCR in its efforts to protect refugees. This is less than a “legal obligation” and suggests that “legislation” amounts to a law that need not be kept. Am I being too critical here or worrying too much? The truth is I have been wondering since the first blog in this series why UNHCR, after repeatedly criticising many of the provisions of the UK’s Nationality & Borders Act 2022 (NBA) and questioning their standing in international law, seems to have done nothing to make the UK accountable for its non-cooperation and apparent lawbreaking. The UK has been taken to court over the policy to send asylum seekers to Rwanda, but not by UNHCR. The case was launched by several charities and other organisations concerned about the consequences for refugees of this policy. This has added to doubts I have had about the Convention for more than a decade. I wrote what follows in 2010. Though much has changed during that time, I think my overall assessment still holds water.
Although, in principle, the Convention seems to establish the primacy of refugee protection, it has proved to be ambiguous and open to a variety of interpretations. So although UNHCR “advocates that governments adopt a rapid, flexible and liberal process” when dealing with asylum applicants because it recognises “how difficult it often is to document persecution” (Protecting Refugees – Questions and Answers (2003), p. 3; http://www.unhcr.ch), its interpretation of the Convention contradicts this stance. In its definition of a refugee, the Convention’s reference to persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion” (Convention & Protocol relating to the Status of Refugees (1996), p. 16: UNHCR, Geneva) suggests the possibility of group persecution and a collective refugee experience. But, when interpreted by UNHCR, the definition turns out to be based on a concept of persecution in which the burden of proof falls on the individual asylum seeker. Thus people “who apply for refugee status normally need to establish individually that their fear of persecution is well-founded” (ibid.), i.e. they must provide evidence that it is not just their social group, members of their political party or people who share their religion or ethnicity who are in danger but themselves as individuals. A “flexible and liberal process” becomes less likely as governments demand this rigorous standard of proof.
Discussions about whether to adopt a collective or an individual definition of persecution had taken place before the Convention was drafted. Concerns were expressed that a broad or collective definition would end up “multiplying the number of refugees ad infinitum” (Vernant (1953), The Refugee in the Post-War World, pp.6-7: Allen & Unwin, London). State officials at the time were resisting Sir John Hope Simpson’s 1939 definition of a refugee as someone who “has left his former territory because of political events there …” (cited, Zolberg et al. (1989), Escape from Violence Conflict and the Refugee Crisis in the Developing World, p. 21: Oxford University Press, New York).
This remained a live issue: the author of a UNHCR-sponsored study in 1953 pointed out that “the mere fact that a man has left his country solely because political events there were not to his liking does not suffice to confer on him the status of refugee” (Vernant, op cit. p. 6).
The solution was to stipulate “persecution” as the key criterion and put the burden of proof on the shoulders of the asylum seeker: “the political events which in the country of origin led to his departure must be accompanied by persecution or the threat of persecution against himself or at least against a section of the population with which he identifies himself” (ibid., p. 7). But in the end, the Refugee Convention, as interpreted by UNHCR, put the burden of proof on the individual asylum seeker.
Ambiguities between text and interpretation should not come as a surprise: UNHCR is the creation of the UN member states and continually finds itself under pressure from these states, especially the most powerful and the largest donors. Loescher reminds us that there has “hardly ever been a time in the UNHCR’s history when governments’ foreign policies or strategic interests did not affect their stance towards the Office [of the High Commissioner]” (Loescher (2001), The UNHCR and World Politics: A Perilous Path, p. 6: Oxford University Press, Oxford). During the Cold War, “American leaders considered refugee policy too important to permit the United Nations to control it” (ibid., p. 7). Today’s pressures are different, but they are just as strong. During the last decade and a half, under pressure from states, UNHCR has shifted its attention from local integration projects, educational programmes and the promotion of refugee participation to an emphasis on repatriation as the preferred solution to the refugee problem. It does, of course, say that repatriation should be “wholly voluntary”, that it should take place “in conditions of safety and dignity” and that UNHCR is against “repatriation under duress” (The State of the World’s Refugees: A Humanitarian Agenda (1997), p. 147: Oxford University Press, Oxford). Nevertheless “governments everywhere were also becoming more restrictionist and were exerting pressure on the UNHCR to encourage and promote the return of refugees to their home countries as quickly as possible” (Loescher, op cit., p. 17). This pressure was successful.
Loescher cites the return of refugees from Bangladesh to Burma, and from Tanzania and former Zaire to Rwanda and Burundi, as “illustrations of situations in which the UNHCR cooperated with host governments to return refugees home before conditions had become safe” (ibid., p. 17). UNHCR cooperation with the UK government in the repatriation of Albanian Kosovans after the 1999 Kosovo war is another example. This repatriation was against the advice of all the relief agencies in the area, a House of Commons committee and the Refugee Council in the UK (Mouncer, Bob (2000), Dealt with on their Merits? The Treatment of Asylum Seekers in the UK and France, p. 58: see link below).
The evidence is that, although UNHCR has managed, at different times in its history, to achieve some autonomy, it has little political authority of its own. But, as Loescher points out, it does have “considerable moral authority and legitimacy” and there is “no other UN agency where values and principled ideas are so central to the mandate and raison d’être of the institution or where some committed staff members are willing to place their lives in danger to defend the proposition that persecuted individuals need protection” (Loescher, op cit., p. 1). In other words, they are seriously committed to the human rights principles referred to in the preamble to the Convention.
However, the question remains whether, in the wake of the Nationality & Borders Act 2022, and with threats of legislation to come which will punish asylum seekers even more severely, UNHCR will do anything to hold the UK to account for its breaches of the Convention and, as many are arguing, of international law.
References
Refugee Convention
Dealt with on their Merits? The Treatment of Asylum Seekers in the UK and France:
Bob Mouncer's blog 