UNHCR and International Refugee Law

From Treaties to Innovation

Corinne Lewis

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136295737
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book considers the United Nations High Commissioner for Refugees' contribution to international refugee law since the establishment of UNHCR by the United Nations General Assembly in 1951. The book explores the historical and statutory foundations that create an indelible link between UNHCR and international refugee law. This book charts the significant evolution that has occurred in the organisation's role throughout the last sixty years, looking at both the formal means by which UNHCR's mandate may be modified, and the techniques UNHCR has used to facilitate the changes in its role, thereby revealing a significant evolution in the organisation's role since the onset of the crisis in refugee protection in the 1980's. UNHCR, itself, has demonstrated its organizational autonomy as the primary agent for the adaptation of its responsibilities and work related to international refugee law. The author does suggest however that UNHCR needs to continue to extend and strengthen its role related to international refugee law if UNHCR is to ensure a stronger legal framework for the protection of refugees as well as a fuller respect for refugees' rights in practice.

UNHCR and International Refugee Law should be of particular interest to refugee lawyers as well as academics and students of refugee law and international law, and anyone concerned with the important role that UNHCR plays in the protection of refugees today.

1
Foundations for UNHCR’s international refugee law role

1.1 Introduction

The United Nations High Commissioner for Refugees was not the first international organization with responsibilities for refugees. Following the establishment of the League of Nations, there was a succession of refugee organizations created to deal with groups of refugees. These organizations are presented as the precursors to UNHCR in refugee law texts, treatises on refugee law, and UNHCR’s training manual on international protection.¹ The agreements for the protection of refugees that existed prior to the 1951 Convention on the Status of Refugees² are also presented. However, the narratives generally do not include how these organizations related to, and were involved with, refugee law. Such organizations and refugee law did not just coexist; refugee law was the centrepiece for the work of nearly all UNHCR’s predecessors.

The mandates and work of UNHCR’s predecessors significantly influenced the formulation of UNHCR’s responsibilities, including those related to international refugee law, which are the focus of this book. This chapter, therefore, serves as a complement to the traditional background of UNHCR through its presentation of the responsibilities and work related to international refugee law of the refugee organizations created prior to UNHCR. In so doing, this chapter grounds the unique and enduring role of UNHCR, related to international refugee law, in the historical foundations of the refugee organizations that preceded UNHCR before it situates UNHCR’s responsibilities related to international refugee law within the overall context of international protection and links those responsibilities to the fundamental refugee law instrument, the 1951 Convention Relating to the Status of Refugees.

1.2 Historical foundations

The plight of people fleeing their homeland to seek protection in other lands is as old as persecution itself. Originally, when a person left his/her country and sought asylum in another country, it was up to the authorities in the country of asylum to decide whether the individual would receive protection and not be expelled. Since the sovereign was generally the source of law, s/he was the ultimate arbiter of how the individual would be treated and what rights would be accorded.

Collective action by States to confront the problem of forced migration did not occur until the formation of the League of Nations in 1919 following the end of the First World War. The League served as an international forum in which States could pursue co-operation not only in the political sphere to prevent wars and ensure peace, but also in the areas of social and economic matters.³

1.2.1 Refugee organizations created by the League of Nations

The displacement of about 1.5 million Russians, as a consequence of the 1917 Bolshevik Revolution, civil war, and the 1921 Russian famine,⁴ served as the catalyst for collective State interest in the creation of the first international office for refugees. The lack of clarity as to which State was responsible for these people, many of whom required material assistance and lacked a recognized identity document, and their movement among countries, in some cases as a result of their expulsion by a country, created tensions among European States.⁵

Therefore, in 1921, the League of Nations created the office of the High Commissioner for Russian Refugees and appointed Dr Fridtjof Nansen as the first High Commissioner.⁶ Initially, his responsibilities concerning the Russian refugees included defining their legal status, organizing their repatriation or allocation to various countries that might be able to receive them, assisting them with finding work, and with the assistance of aid groups, providing relief to them.⁷ In 1924, his mandate was extended to include Armenian refugees who had fled Turkey and in 1928, to include Assyrian and Assyro-Chaldean and Turkish refugees.⁸ He then carried out the same responsibilities for these two groups and the word ‘Russian’ was deleted from his title.

Following the death of the High Commissioner in 1930, the League of Nations created the Nansen International Office for Refugees to carry out the humanitarian assistance work for refugees previously handled by Nansen.⁹ The secretariat of the League of Nations assumed responsibility for the legal and protection work handled by Nansen, but in practice, it was the Nansen Office that would carry out both the humanitarian and legal and protection aspects.¹⁰

In response to the exodus of persons from Germany, the League of Nations created a special organization in 1933, the Office of the High Commissioner for Refugees coming from Germany,¹¹ which initially was not part of the League of Nations system due to the membership of Germany in the League at the time. The office was to assist refugees from Germany in the same manner as the High Commissioner for Refugees and the Nansen Office, with the secretariat of the League, had supported other groups of refugees. In 1938, the Office of the High Commissioner for Refugees coming from Germany also became responsible for refugees fleeing Austria,¹² but this office was liquidated, along with the Nansen Office, at the end of 1938, and replaced by a High Commissioner of the League of Nations for Refugees. Consequently, this new High Commissioner assumed responsibility for the refugees aided by the Nansen Office and the High Commissioner for Refugees coming from Germany.¹³

The organizations created by States through the League of Nations were the first international attempts by States to co-ordinate efforts related to refugees. However, each of the organizations mentioned earlier, like other entities created by the League to deal with specific refugee situations,¹⁴ was only given responsibility for certain nationalities of refugees. States were not yet ready to deal with refugees as an international phenomenon, but instead considered them to be discrete localized problems. The refugees’ nationality and the fact that they had crossed an international border were the defining characteristics of the groups of refugees.

1.2.1.1 Responsibilities related to international refugee law

When the League of Nations appointed Nansen as the first High Commissioner in 1921, international refugee law was non-existent.¹⁵ However, Nansen’s mandate included refugee law-related responsibilities. Specifically, he was to define the legal status of refugees, although his mandate did not establish how he was to do this. The problems encountered by the refugees would serve as the catalyst for Nansen’s significant role in the development of international refugee law.

The practical difficulties faced by the de-nationalized Russian refugees, who lacked identity or travel documents, spurred the Council to call a conference of representatives of interested governments, which met in August 1921. A second conference was convened in September 1921, over which Dr Nansen presided, to further discuss the problem. Dr Nansen then consulted with the International Labour Office, legal authorities among the refugees, and a conference of private organizations, and prepared specific proposals on identity papers for the refugees to be considered by governments.¹⁶ At an inter-governmental conference in 1922, called by Dr Nansen,¹⁷ the Arrangement with Regard to the Issue of Certificates of Identity to Russian Refugees was adopted, which provides a common form for the identity certificate as well as conditions related to its issuance and use by a refugee.¹⁸

Similar concerns about the situation of Armenian refugees led the High Commissioner to consider, at the request of the Council of the League of Nations, the issue of identity certificates for Armenians; Dr Nansen studied the problem and then drafted an agreement concerning identity certificates for this group of refugees.¹⁹ He subsequently initiated an agreement that consolidated and amended the arrangements concerning identity certificates for Russian and Armenian refugees.²⁰ Other practical problems faced by the refugees resulted in the High Commissioner preparing two instruments that concerned the rights of refugees, which instruments were adopted at an inter-governmental conference in 1928.²¹ These arrangements concerned the personal status, legal assistance, expulsion, taxation, and identity certificates of certain groups of refugees.

The fact that the Nansen Office was responsible for the humanitarian rather than the legal and protection work notwithstanding, as already noted, it was, nevertheless, mandated to undertake a function related to the practical application by States of the arrangements instituted by the first High Commissioner. Specifically, the Nansen Office was to ‘[f]acilitat[e], within the limits of its competence, the application, in particular cases, of the arrangements that have been made for the benefit of the refugees.’²² This included ‘certifying the identity and the position of the refugees’, ‘[t]estifying to the regularity, validity, and conformity with the previous law of their country of origin, of documents issued in such country’ among other services.²³ In addition, although not specified in its mandate, the Nansen office prepared an agreement, the first one to be legally binding on States, relating to the protection of refugees,²⁴ the 1933 Convention Relating to the International Status of Refugees.²⁵

As for the High Commissioner’s Office for Refugees coming from Germany, it was specifically instructed to convoke an intergovernmental conference in order to provide ‘a system of legal protection for refugees coming from Germany’,²⁶ which it did in the form of the 1936 Provisional Arrangement Concerning the Status of Refugees Coming from Germany, which concerned certificates of identity, and the personal status and freedom of movement of refugees, among other matters.²⁷ After the drafting of the 1936 Provisional Arrangement, the Office was instructed by the Assembly of the League of Nations to obtain the accession of States to the Arrangement and ‘to prepare an intergovernmental conference for the adoption of an international convention on the status of these refugees.’²⁸ The result was the 1938 Convention Concerning the Status of Refugees Coming From Germany that replaced the 1936 Arrangement. The 1938 Convention reiterated most of the provisions contained in the 1936 Arrangement, but also covered topics such as labour conditions, welfare and relief, and the education of refugees.²⁹

As a result of the creation of a number of agreements for the protection of refugees, when the High Commissioner of the League of Nations for Refugees was appointed in 1938, following the liquidation of the office of the High Commissioner’s Office for Refugees coming from Germany and the Nansen Office, the League of Nations Assembly provided it with a specific supervisory responsibility related to international refugee law agreements. The High Commissioner was to ‘superintend the entry into force and the application of the legal status of refugees, as defined more particularly in the Conventions of 28 October 1933 and 10 February 1938’.³⁰ Specifically, the High Commissioner was to ensure that the 1933 Convention relating to the International Status of Refugees concerning Russian, Armenian, Assyran, Assyro-Chaldean, Turkish and other refugees, and the 1938 Convention Concerning the Status of Refugees Coming From Germany were ratified by States and applied by them within their national systems.

Thus, while the first High Commissioner, Nansen, was given a general mandate for defining the legal status of refugees, the realities of the refugees’ situation, in particular, the obstacles they faced, served as the catalyst for the creation of international arrangements concerning identity documents and refugees’ legal status. Similarly, while nothing in its mandate provided that it should further develop legal standards for the protection of refugees, the Nansen Office prepared the first convention to be legally binding on States. In creating the High Commissioner for Refugees coming from Germany, States recognized that the protection afforded to certain groups of refugees, such as Russians, Armenians, Turkish, Assyrian, and Assyro-Chaldean refugees needed to be provided to German refugees. Therefore, the High C...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Table of cases
• Table of instruments
• List of abbreviations
• Introduction
• 1 Foundations for UNHCR’s international refugee law role
• 2 UNHCR’s statutory role and work related to refugee law
• 3 Flexibility in UNHCR’s international law role
• 4 The crisis in refugee protection
• 5 UNHCR’s approaches to address weaknesses in the treaty framework
• 6 UNHCR’s approaches to improve the effectiveness of international refugee law
• 7 Concluding remarks: applying lessons from the past to enhance UNHCR’s role in the future
• Bibliography
• Index