Problems of Protection

The UNHCR, Refugees, and Human Rights

Niklaus Steiner, Mark Gibney, Gil Loescher, Niklaus Steiner, Mark Gibney, Gil Loescher

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135395551
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

First Published in 2003. Of all the humanitarian impulses in world politics today, one of the most widely recognized is the need to protect refugees. However, as The Problems of Protection explores, what on the surface appears to be a simple proposition can quickly become complex and controversial. This complexity results in troubling variation in how we respond to our obligation to protect refugees--while NATO launches a major military intervention on behalf of Albanians in Kosovo amidst worldwide media attention, the international community's response to Sierra Leonean refugees is slow, inefficient and inadequate. Who qualifies as a refugee in need of protection? Should refugees be returned as soon as possible, or integrated into safer host countries? The contributors to this volume address the often lacking political will among powerful countries and donors, shifting attitudes among affected countries, and the difficulty of rebuilding societies in a world in which the number of refugees will almost certainly continue to increase.

1

Introduction: Refugee Protection and UNHCR

1

UNHCR at Fifty

Refugee Protection and World Politics

Gil Loescher

There is probably no more appropriate time than now to re-examine the role of the United Nations High Commissioner for Refugees (UNHCR) regarding the protection of refugees. Fifty years ago, on January 1, 1951, UNHCR began operations out of three rooms at the Palais des Nations in Geneva, Switzerland. On July 28 of that year, the 1951 Convention Relating to the Status of Refugees was adopted. This, like the UNHCR mandate, defined a refugee as someone who has fled his or her home country owing to a “well-founded fear of persecution.” Over the next five decades, the global refugee problem grew enormously from about 2 million in 1951 to over 12 million at the beginning of the twenty-first century.¹ At the same time, the numbers of “persons of concern to UNHCR,” namely asylum seekers, returned refugees, internally displaced persons, and others of concern, when added to the global refugee total, numbered almost 23 million.² To respond to the ever-expanding refugee crisis, the international community channeled substantial assistance to refugees through UNHCR, and consequently the agency became the centerpiece of the international refugee regime.

The evolution of UNHCR has not taken place within a political vacuum.³ During the past half century, the growth and direction of the agency has been framed by the crucial events of international politics. Not only is it important to situate UNHCR within the context of world politics but it is also important to appreciate how, in turn, the actions of past High Commissioners and the diffusion of international refugee norms have helped shape the course of recent world history. Indeed, the history of UNHCR demonstrates that international organizations matter in international relations.

Scholars and practitioners of international relations have been slow to recognize either the rationality or significance of UNHCR in world politics. Among UN agencies, UNHCR is unique. It is both an individual, represented in the High Commissioner, and a bureaucracy with its own distinct culture and value system. The High Commissioner has little or no political authority but is vested with considerable moral authority and legitimacy dating back not just to its own founding in 1951 but to 1921 when Fridtjof Nansen was appointed as the first High Commissioner for Refugees by the League of Nations. UNHCR is an organization with its own identity, comprising over 5,000 individuals of different nationalities who share similar values. One cannot fully understand UNHCR without a knowledge of its organizational culture. Fifty years after its founding, the agency still embodies a unique international commitment to refugees. There exists 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. As UNHCR itself claims, if the Office did not exist, hundreds of thousands, if not millions, of refugees would be left unassisted and unprotected.

However essential the agency is, it is important not to take the rhetoric and self-presentation of UNHCR at face value. While UNHCR has had many successes over the past fifty years, it has also had many failures. A number of internal and external constraints inhibit the organization from achieving its full impact. The Office has an organizational culture that makes innovation and institutional change difficult,⁴ and the Office remains largely unaccountable for violation of its mandate.

UNHCR also has endemic political problems. UNHCR was created by UN member states to be both a strictly non-political agency and an advocate for refugees. However, from its beginning, it was clear that the agency’s role would be an intensely political one. The existence of refugees indicates political upheaval in their homelands. UNHCR’s primary mandate is to protect refugees from repression. This often requires the Office to directly challenge governments and places the agency in a conflictive relationship with states that produce refugees. However, UNHCR is not just an advocacy organization; it also exists to facilitate state policies towards refugees. States did not establish UNHCR from purely altruistic motives, but also from a desire to promote regional and international stability and to serve the interests of governments. Governments created the Office to help them resolve problems related to refugees who were perceived to create domestic instability, to generate interstate tensions, and to threaten international security. UNHCR is also an inter-governmental organization and part of the UN system and therefore cannot always act in a strictly neutral fashion. This was certainly the case in Bosnia and Kosovo as well as in other places. Thus, UNHCR often walks a tightrope, maintaining a perilous balance between the protection of refugees and the sovereign prerogatives and interests of states.

One cannot fully understand UNHCR without placing it within the context of world politics. In the international political system today, states remain the predominant actors. But this does not mean that international organizations like UNHCR are completely without power or influence. Successive High Commissioners quickly realized that in order to have any impact on the world political arena they had to use the power of their expertise, ideas, strategies, and legitimacy to alter the information and value contexts in which states made policy. The Office has tried to project refugee norms into a world politics dominated by states driven by concerns of national interest and security. Successful High Commissioners have convinced states to define their national interests in ways compatible with refugee needs.

UNHCR not only promotes the implementation of refugee norms; it also monitors compliance with international standards. For most of its history, the Office has acted as a “teacher” of refugee norms.⁵ The majority of UNHCR’s tactics have mainly involved persuasion and socialization in order to hold states accountable to their previously stated policies or principles. Past High Commissioners have frequently reminded Western states in particular that as liberal democracies and open societies they are obliged to adhere to human rights norms in their asylum and refugee admissions policies. In the past, because UNHCR possessed specialized knowledge and expertise about refugee law, states often deferred to the Office on asylum matters. This was particularly the case before the 1980s when UNHCR had a monopoly on information about refugee law and refugee movements. During the early decades of its existence, the Office enjoyed maximum legitimacy as it simultaneously tried to define the refugee issue for states, to convince governments that refugee problems were soluble, to prescribe solutions, and to monitor their implementation. In recent decades, as a result of states developing their own immigration and refugee machinery and as a result of increasing restrictionism on the parts of states, UNHCR has lost its monopoly on information and expertise. Consequently, its authority and legitimacy in the realm of asylum has declined.

UNHCR not only acted as a transmitter of refugee norms but also socialized new states to accept the promotion of refugee norms domestically as part of becoming a member of the international community. This socialization occurred first in the 1960s and 1970s in the newly independent or developing countries of Asia, Africa, and Latin America, and later in the 1990s in the republics of the former Soviet Union. The political leaders of most newly independent governments in Africa, Asia, and the Commonwealth of Independent States cared deeply about their international image and sought international legitimacy through cooperation with UNHCR. Thus, UNHCR became one of the “gatekeepers” in determining which governments were worthy of membership in international society.

In addition to exercising moral leverage to gain influence with states, UNHCR has repeatedly tried to link the refugee issue to states’ material interests. Material assistance programs provided UNHCR with significant leverage. States have occasionally been willing to adapt their behavior to UNHCR pressures for purely instrumental reasons. Thus, through a mixture of persuasion and socialization, UNHCR communicated the importance of refugee norms and convinced many new states that the benefits of signing the refugee legal instruments and joining UNHCR Executive Committee (either as a member or an observer) outweighed the costs of remaining outside the international refugee regime.

UNHCR has not just been an agent in world politics but also a principal actor. This has been particularly true in situations where there has been a coincidence of humanitarian and political factors. However, this view of UNHCR as an actor and not just an agent has largely not been recognized by international relations scholars. Most international relations literature on refugees adopts a Statist perspective, which is still the dominant paradigm in international relations. This perspective claims that UNHCR, like all international organizations, is just a mechanism through which states act; it is not an autonomous actor but just a structure to do states’ bidding.

One can find considerable support for this argument. UNHCR is totally dependent on donors and states for funding operations and on host governments for permission to initiate operations on their soil. Fifty years ago governments established a voluntary funding system for UNHCR, thereby avoiding increasing states’ financial obligations to the UN and leaving to UNHCR the problems of raising the means to carry out its programs. Lacking a system of mandatory assessed contributions from governments, the High Commissioner has to directly seek contributions from possible donor countries. Not surprisingly, 98 percent of the agency’s funding comes from a handful of industrialized states. The US, Japan, and the EU account for 94 percent of all government contributions to UNHCR.⁶ Donations are frequently driven by politics and donors’ interests in particular refugee crises. Some 80 percent of funding is earmarked for particular operations or programs.⁷ Most importantly, UNHCR’s ability to operate independently depends on the role that host governments choose to play. As an international organization, UNHCR depends on sovereign host governments to ensure access to, and order, in its operational environment. Frequently, host states have interfered with and obstructed both the agency’s entry to countries of origin and its activities there, thus compromising the Office’s autonomy and legitimacy. Thus, it is a commonly held view that UNHCR has only partial control over circumstances key to its performance, is in no position to challenge the policies of its funders and host governments, and merely acts as an instrument of states.

But this may be too simplistic a view. While UNHCR is constrained by states, the notion that it is a passive mechanism with no independent agenda of its own is not borne out by the empirical evidence of the past five decades. For example, it seems clear that the autonomy and authority of UNHCR has grown over the years and the Office has become a purposive actor in its own right with independent interests and capabilities. This was especially the case in the formative phase of the organization but it is also the case that UNHCR has not solely been an instrument of state interests in the more recent period. Rather it is more correct to say that UNHCR policy and practice have been driven both by state interests and by the Office acting independently or evolving in ways not expected nor necessarily sanctioned by states.

There are many examples during the past fifty years illustrating the Office’s relative independence of states. I will briefly mention two. The first comes from the early Cold War period and the second from the more recent post–Cold War period.

The Cold War Period

When the UNHCR opened its doors in January 1951, there was a remarkable symmetry in world politics. In the conflict between communism and capitalist democracy, each camp’s view of good and evil was unquestionably identifiable. From its founding, UNHCR was enmeshed in the international politics of the East–West conflict and refugees were perceived as elements of power in the bipolar rivalry.

In some respects, Cold War politics made life easy for UNHCR and for Western governments. In a Manichean political world, there was a clarity and simplicity in deciding refugee status. Recognizing persecution and identifying its perpetrators caused no headaches and the grant of asylum was generally used to reaffirm the failures of communism and the benevolence of the West. UNHCR proved valuable to the West as an agency able to handle flows out of Eastern Europe for resettlement in the “Free World,” particularly after the 1956 Hungarian Uprising. International refugee policy not only saved many individuals who were subject to repression in communist dictatorships, but it also clearly served the geopolitical interests of the United States and its allies.

During the 1950s, Europe was the principal area of refugee concern as the Cold War intensified and new refugee flows moved from East to West. While the Eurocentric orientation of UNHCR reflected the international political environment, it also reflected the foreign policy priorities of the United States and the other major Western governments.⁸ At the height of the Cold War, American leaders considered refugee policy too important to permit the United Nations to control it. To this end, the United States sought to limit severely the functional scope and independence of UNHCR and instead created two other U.S.-led organizations that were parallel to and outside the purview of the United Nations. These were the International Committee of European Migration, now the International Organization for Migration, and the U.S. Escapee Program. The United States was also instrumental in establishing specially created UN agencies in the Middle East for the Palestinians⁹ and the Korean Peninsula for the Koreans displaced in the Korean War.¹⁰ These were refugee populations that were located in strategic conflict areas where U.S. geopolitical interests were significant. The United States funded all of these organizations much more generously than it did UNHCR, and until late 1955 these organizations provided the United States with a pretext for completely withholding financial support from the UN based refugee regime.

The denial of American financial and diplomatic support directly affected UNHCR’s ability to define an independent role and to implement its goals and programs. Even five years after its founding, and despite large refugee flows around the world, governments deliberately kept UNHCR small and confined to providing legal protection for displaced persons who had not been resettled by the International Refugee Organization (IRO). Until the mid-1950s, the UNHCR was a sideshow, largely irrelevant to regional and international high politics and limited to finances barely adequate to keep it going.

Despite the opposition of Western governments, UNHCR began to exercise power autonomously in ways unintended by states at its creation. The first High Commissioner, Gerrit van Heuven Goedhart, initially enlarged the scope of his office by obtaining the capacity to independently raise funds and by assuming material assistance responsibilities. A grant from the Ford Foundation enabled UNHCR to take the lead role in responding to a refugee crisis in West Berlin in early 1953, thereby demonstrating its usefulness to the major powers and raising the Office’s international profile. These early successes legitimized the need for UNHCR material assistance to refugees and directly led to the establishment of a UNHCR program for permanent solutions and emergency assistance. This paved the way for the UN to designate UNHCR as the “lead agency” directing the international emergency operation for Hungarian refugees in 1956 despite initial American opposition.

The Hungarian operation also demonstrated the important diplomatic role that the High Commissioner could play in events at the center of world politics. In the midst of the first major Cold War refugee crisis, UNHCR played an essential mediating role between East and West involving the repatriation of nearly 10 percent of the Hungarian refugees. This operation was extremely controversial and was initially opposed by Western governments who considered repatriation to socialist countries unthinkable.

Thus, largely on its own initiatives, UNHCR grew from a strictly non-operational agency with no authority to appeal for funds to an institution with a long-range program emphasizing not only protection but, increasingly, material assistance. This remarkable transition not only demonstrated the tension between state interests and the drive for relative autonomy on the part of an international organization but it also underlined the capacity of UNHCR to have an independent influence on events at the center of world politics.

During the 1950s, UNHC...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• 1. Introduction: Refugee Protection and UNHCR
• 2. The Ethics of Refugee Protection
• 3. Legal and Institutional Protection of Refugees
• 4. Policy Implications of Refugee Protection
• 5. Refugee Protection Post–September 11
• Notes
• Biographies
• Index