Part 3 The United Nations: What it Does, 23 Office of the United Nations High Commissioner for Refugees
Dame Rosalyn Higgins DBE, QC, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan
Rosalyn Higgins, Philippa Webb, Dapo Akande, Sandesh Sivakumaran, James Sloan
Aleinikoff, ‘The Mandate of the Office of the United Nations High Commissioner for Refugees’ in Research Handbook on International Law and Migration (eds Chetail and Bauloz, 2014); Beigbeder, Le Haut Commissariat des Nations Unies pour les réfugiés (1999); Belloni, ‘L’Alto Commissariato per I rifugiati e la protezione internazionale’ in Le organizzazioni internazionali: struttura, funzioni, impatto (eds Belloni, Moschellla, and Sicurelli, 2013); Betts, Loescher, and Milner (eds), UNHCR: The Politics and Practice of Refugee Protection (2008); Feller and Klug, ‘Refugees, United Nations High Commissioner for (UNHCR)’ in MPEPIL (online); Goodwin-Gill and McAdam, The Refugee in International Law (2007); Hathaway, The Rights of Refugees under International Law (2005); Janmyr, Protecting Civilians in Refugee Camps (2013); Kälin, ‘Supervising the 1951 Convention relating to the Status of Refugees: Article 35 and Beyond’ in Refugee Protection in International Law (eds Feller, Türk, and Nicholson, 2003); Lewis, UNHCR and International Refugee Law (2012); Loescher, The UNHCR and World Politics (2001); Simeon (ed), The UNHCR and the Supervision of International Refugee Law (2013); Türk Das Flüchtlingshochkommissariat der Vereinten Nationen: UNHCR (1992); Türk, ‘The Role of UNHCR in the Development of International Refugee Law’ in Refugee Rights and Realities: Evolving International Concepts and Regimes (eds Nicholson and Twomey, 1999); UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (reissued 2011); UNHCR, Note on the Mandate of the High Commissioner for Refugees and his Office, Division of International Protection, October 2013; UNHCR, Thematic Compilation of General Assembly and Economic and Social Council Resolutions (2015); UNHCR, Thematic Compilation of Executive Committee Conclusions (forthcoming, 2017); http://www.unhcr.org; http://www.refworld.org; Zimmerman (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol (2011).
23.01 The Office of the United Nations High Commissioner for Refugees (UNHCR) was established by the General Assembly in 1950.1 The Statute of the Office of the United Nations High Commissioner for Refugees (hereinafter ‘Statute of the UNHCR’) is annexed to General Assembly Resolution 428(V) (1950).2 The UNHCR was initially created for a provisional period of three years, it being provided in the Statute that the arrangements for the Office were to be revisited at the 8th regular session of the General Assembly, ‘with a view to determining whether the Office should be continued beyond 31 December 1953’.3 (p. 881) Between 1953 and 2003, the mandate of the UNHCR was extended periodically, for a period of five years at a time,4 making it more difficult for the UNHCR to engage in long-term planning of its work. Only in 2004, more than 50 years after it was established, did the General Assembly remove the temporal limitation attached to the UNHCR, authorizing the continuation of the Office ‘until the refugee problem is solved’.5 As the ‘refugee problem’ is unlikely to be solved in the near future, the UNHCR is effectively a de facto permanent organ.
23.02 The UNHCR is a subsidiary body of the General Assembly.6 It operates under the authority of the General Assembly, and is required to follow policy directives of the General Assembly and ECOSOC.7 Nonetheless, the UNHCR enjoys significant operational independence.8 The High Commissioner is ‘elected by the General Assembly on the nomination of the Secretary-General’,9 and the High Commissioner reports annually to the General Assembly.10
23.03 The Statute of the UNHCR provides: ‘The High Commissioner may invite the cooperation of the various specialized agencies.’11 The UNHCR works closely with key partners, such as the World Food Programme (WFP), International Organization for Migration (IOM), International Labour Organization (ILO), United Nations Devel(p. 882) opment Programme (UNDP), the Office of the United Nations High Commissioner for Human Rights (OHCHR), United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), and the United Nations Children’s Fund (UNICEF), in areas of mutual concern.12 It also liaises and cooperates with other international, regional, and national actors.13 Further, the UNHCR plays an important role within the Inter-Agency Standing Committee (IASC).14 Inter-agency relations have not always been easy, and at various points in the UNHCR’s history tensions have arisen between UN entities around the scope of, and interaction between, mandates and competition over funding and resources;15 however, relationships have become smoother over time.
23.04 The UNHCR works closely with non-governmental organizations (NGOs) as partners, dispersing funds to them in order that they may administer assistance to refugees, providing them with training on refugee issues, and enhancing their capabilities.16 (p. 883) It also undertakes an annual consultation with NGOs.17 Further, the UNHCR works closely with the ICRC.
23.05 The Executive Committee of the High Commissioner’s Programme was established by ECOSOC in 1958, pursuant to a request of the General Assembly to establish an Executive Committee.18 At October 2016, the Executive Committee comprised representatives of 98 states, with all UN member states being able to apply to join.19 The resolution of ECOSOC that established the Executive Committee provides that they are to be elected by ECOSOC, from states that have ‘a demonstrated interest in, and devotion to, the solution of the refugee problem’.20 Nonetheless, states that have been criticized for their treatment of refugees are members of the Committee, as are (p. 884) states that are not parties to the 1951 Convention Relating to the Status of Refugees and/or the 1967 Protocol Relating to the Status of Refugees.
23.06 The Executive Committee has an oversight as well as an advisory function. Its mandate includes the approval of UNHCR programmes and the budget for those programmes.21 The General Assembly has indicated that the UNHCR is to abide by the directions of the Executive Committee ‘with regard to refugee situations’.22 The Executive Committee has exercised ‘a growing influence over the day-to-day management and policy work of UNHCR’.23 The mandate of the Executive Committee also includes advising the ‘High Commissioner, at his or her request, in the exercise of his functions under the Statute of the Office’.24 Advice to the High Commissioner on issues of international protection is given primarily in the form of Executive Committee Conclusions on International Protection, which are adopted by consensus.
23.07 The Executive Committee meets in plenary session, on an annual basis, in Geneva.25 It reports annually to the General Assembly.26 A standing item on the agenda of plenary sessions is that of international protection. The Executive Committee aims each year to adopt ‘Conclusions’ on International Protection, which address key protection or operational challenges related to the UNHCR’s work, or to the situation of refugees and other persons of concern worldwide.27 These Conclusions are not binding on states; however, they have proved to be influential and constitute useful (p. 885) interpretive guidance with respect to international refugee law.28 They are similarly influential in so far as the UNHCR is concerned.29
(p. 886) 23.10 The position of High Commissioner does not carry with it great political or legal weight. However, it does carry with it considerable moral weight, and much turns on the personality and capability of the individual High Commissioner.34 Much of the work of the High Commissioner involves placing refugee issues on the international agenda and raising refugee issues with high-level officials at the national level.35 An individual High Commissioner can also shape the direction and focus of the Office considerably.36
23.12 The High Commissioner appoints his/her representatives in countries in which refugees reside. The High Commissioner is to consult with the governments of such countries prior to making any such appointments.39
23.13 The UNHCR has various divisions. The Division of Financial and Administrative Management, the Division of Information Systems and Telecommunications, the (p. 887) Division of External Relations, and the Division of Human Resources Management are under the auspices of the Deputy High Commissioner. The Division of Emergency Security and Supply, the Division of Programme Support and Management, and the various regional Bureaux are under the auspices of the Assistant High Commissioner (Operations); and the Division of International Protection is under the auspices of the Assistant High Commissioner (Protection).40
23.14 The Division of International Protection, the division with primary responsibility for the legal aspects of the UNHCR’s work, is subdivided into distinct services.41 Service I, covering policy and law, includes such units as protection policy and legal advice, refugee status determination, statelessness, and protection and national security. Service II, on protection and operational support, includes such units as internally displaced persons, child protection, and gender; and Service III on protection management, includes comprehensive solutions and education. The fourth Service covers resettlement.42
23.16 The Headquarters of the UNHCR is located in Geneva, Switzerland,45 with Global Service Centres in Budapest, Hungary, Copenhagen, Denmark, and Amman, Jordan. Given the nature of its work, the UNHCR has field presences in over 125 countries.46 Regional offices cover several countries, or serve as technical support hubs while (p. 888) country offices focus on a single country. Field offices, sub-offices, and field units within a country are located closer to refugee and displaced populations. The UNHCR also maintains an office in New York, liaising with the UN system there and with states missions to UN Headquarters; as well as a segment of the Europe Bureau based in Brussels, which liaises with the EU; while a liaison unit in Addis Ababa covers the African Union.47
23.17 The UNHCR’s mandate stems principally from its Statute,48 but also from the 1951 Refugee Convention and its 1967 Protocol,49 from regional refugee instruments50 and human rights instruments,51 and from various resolutions of its parent body—the General Assembly.52 The Statute of the UNHCR provides that its work is required to be ‘of an entirely non-political character’, ‘humanitarian and social’, and relate, ‘as a rule, to groups and categories of refugees’.53 However, the realities of state responses to refugee movements, and the political debates such movements trigger, raise questions about whether it is possible to act effectively in the refugee protection domain without engaging with political processes and discussions.54
23.18 The Statute of the UNHCR extends the competence ratione personae of the High Commissioner to: persons who were refugees under prior arrangements and instruments; persons who, ‘as a result of events occurring before 1 January 195155 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion’, are outside their country of nationality, or if they do not have a nationality, outside the country of their former habitual residence, and who are unable or, ‘owing to such fear or for reasons other than personal convenience’, unwilling to avail themselves of the protection of that country;56 and ‘[a]ny other person who is (p. 890) outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence’.
23.19 It also provides that the competence does not extend to certain persons.57
23.20 The 1951 Convention Relating to the Status of Refugees defines a refugee in a manner that is similar to that contained in the Statute of the UNHCR.58 However, there are two differences between the two definitions. Article 1A(2) of the Refugee Convention is broader than the definition in the Statute of the UNHCR, in that it includes persecution on the ground of ‘membership of a particular social group’.59 It is also narrower in that, pursuant to Article 1B of the Convention, the individual must be outside the country of his nationality as a result of events ‘occurring in Europe before 1 January 1951’ or, alternatively, ‘events occurring in Europe or elsewhere before 1 January 1951’, states parties deciding for themselves which alternative (p. 891) shall apply.60 The difficulties posed by the temporal and geographical limitations of the Convention definition were recognized by the General Assembly61 and removed by the 1967 Protocol.62
23.21 The General Assembly has also authorized the UNHCR to carry out activities in respect of individuals who do not fall within the Statutory or Convention notions of a refugee.63 This has extended the competence ratione personae of the UNHCR, inter alia, to individuals fleeing situations of armed conflict,64 who were later considered (p. 892) to fall within the scope of the Article 1A definition of a refugee;65 returnees, that is to say, refugees who have returned to their country of origin;66 and asylum-seekers, that is to say, individuals whose claims to refugee status have not yet been determined but whose applications mean that they could be refugees and thus in need of protection until their claims have been determined.67
23.22 The Statute of the UNHCR provides that the competence of the High Commissioner extends to stateless refugees; the 1951 Refugee Convention also applies to stateless refugees.68 The UNHCR also has a role to play with respect to stateless persons who are not refugees. The 1961 Convention on the Reduction of Statelessness called for (p. 893) ‘a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority’, and the General Assembly designated the UNHCR as that body.69 The General Assembly has also tasked the UNHCR with certain functions in respect of stateless persons,70 and has noted the link between ‘the prevention and reduction of statelessness and the protection of stateless persons’ and ‘the prevention of potential refugee situations’.71 The mandate from the General Assembly was particularly important in light of the relatively few states that were parties to the Convention on the Reduction of Statelessness, and given that it extends to stateless persons who are not refugees.72 The Conclusions of the Executive Committee have provided further guidance on the UNHCR’s activities in respect of stateless persons.73 The work of the UNHCR in this context is manifold, and includes such things as assisting in the drafting of nationality legislation, providing training to state officials, assisting in the registration of births, and seeking to find solutions for stateless persons.74 The UNHCR has also (p. 894) published Guidelines on Statelessness, which are ‘intended to provide interpretive legal guidance for governments, NGOs, legal practitioners, decision-makers and the judiciary, as well as for UNHCR staff and other UN agencies involved in addressing statelessness’.75
23.23 Notwithstanding the lack of mention of internally displaced persons in the Statute of the UNHCR, in the early 1990s76 the General Assembly supported the UNHCR’s efforts in respect of such persons.77 However, UNHCR activities in respect of internally displaced persons are not unconditional. They are limited to situations in which there has been a specific request by the Secretary-General or other appropriate UN organ, and consent on the part of the state concerned, and take into account the ‘complementarities of the mandates and expertise of other relevant organizations’.78 (p. 895) Furthermore, activities on behalf of internally displaced persons must not undermine the institution of asylum,79 or the mandate of the Office of the UNHCR.80 Regard is also had to the sufficiency of funding, in order that funding for activities in respect of refugees is not depleted.81 In 2005, as part of the humanitarian reform process, ‘clusters’ were created in order to improve the international response to humanitarian emergencies, and the IASC assigned the UNHCR as the cluster lead entity, inter alia, for conflict-related internally displaced persons.82
23.24 The UNHCR thus plays a significant role in respect of internally displaced persons.83 However, its work in respect of such persons is not uncontroversial. For some, internally displaced persons are in need of protection and assistance, and the UNHCR is the organization best placed to engage in such protection and assistance activities. For others, activities in respect of internally displaced persons take the UNHCR away from its statutory mandate. Furthermore, there is a certain tension between refugees and internally displaced persons, with some states attempting to prevent refugee movements through the ‘internal flight alternative’, thus potentially politicizing the work of the UNHCR.84
23.25 The UNHCR has two principal statutory functions: to ‘assume the function of providing international protection, under the auspices of the United Nations, to refugees’;85 (p. 896) and to seek ‘permanent solutions for the problem of refugees’.86 The international protection component of the mandate is sometimes considered the more important of the two, given that if protection is not afforded to refugees, permanent solutions may not prove possible.87 However, this is not without debate.88 The UNHCR considers the two functions to be ‘part of an indivisible continuum’, with a permanent solution being ‘the ultimate form of protection’.89
23.26 In addition to its statutory functions, the General Assembly may task the UNHCR with additional activities,90 and has done so. Accordingly, the precise role and functions of the UNHCR have changed over time.91 However, the expanded mandate of the UNHCR is not uncontroversial.92
23.27 The notion of ‘international protection’ is not defined in the Statute. It has been described as ‘both a legal concept and at the same time very much an action-oriented function’.93 Article 8 of the Statute of the UNHCR provides:
The High Commissioner shall provide for the protection of refugees falling under the competence of his Office by:
(a) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto;
(b) 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;
(c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities;
(d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States;
(e) Endeavouring to obtain permission for refugees to transfer their assets and especially those necessary for their resettlement;
(f) Obtaining from Governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them;
(i) Facilitating the co-ordination of the efforts of private organizations concerned with the welfare of refugees.94
(p. 898) 23.28 As is evident from the nine listed functions, international protection commences with admission to a safe country and concludes with the achievement of a durable solution.95 The absence of a statutory definition of international protection, coupled with the relative imprecision of the listed functions, has allowed the UNHCR to shape its role to meet the needs of the situation at hand.96
23.29 An important aspect of international protection is the UNHCR’s supervisory responsibility.97 Article 8(a) of the Statute refers to the UNHCR’s role in the supervision of international conventions for the protection of refugees. However, the Statute does not expand on the UNHCR’s supervisory responsibility.98 In practice, the UNHCR, inter alia, works with states to ‘design operational responses’, intervenes with states and other actors, advises on national refugee status determination systems, intervenes in cases before courts, gains access to, advises, and assists refugees and persons seeking asylum, advises on the drafting of legislation, undertakes advocacy, undertakes capacity-building activities, and receives and gathers data.99 In international instruments on the protection of refugees, states parties commit to cooperating with the UNHCR in the exercise of its functions and facilitating its duty of (p. 899) supervision.100 This entails, amongst other things, providing information and data to the UNHCR.101
23.30 One influential aspect of the UNHCR’s supervisory responsibility is its role in the development and effectiveness of refugee law.102 The mandate of the UNHCR includes ‘[p]romoting the conclusion and ratification of international conventions for the protection of refugees … and proposing amendments thereto’.103 The UNHCR has played an important role in the drafting of refugee conventions and instruments.104 It encourages states to ratify and accede to refugee conventions.105 It issues guidance (p. 900) on the interpretation of the 1951 Convention, as well as guidelines, notes, and papers.106 It has contributed to the development of customary international law.107 It assists in the development of national laws,108 and intervenes on occasion as amicus curiae in proceedings before national and regional courts.109 It also engages in the dissemination of refugee law.110 The UNHCR thus plays an intervening, advocacy, and advisory role.111 The protection policy and legal advice unit within the Department of International Protection plays an important part in this regard.
23.31 The UNHCR also undertakes refugee status determinations, even though they are primarily the responsibility of states. Its participation in refugee status determinations takes a number of forms, including sitting on a national status determination commission, advising or providing information to such a commission, or having a supervisory or an appeal function.112 Some states are unable or unwilling to carry (p. 901) out refugee status determinations; and in these states, the UNHCR takes on the role.113 However, refugee status determinations conducted by the UNHCR have not always operated smoothly,114 and do not always ensure access to a durable solution or to the respect by states or others of refugees’ rights. The UNHCR considers this to be one of its core protection functions, as refugee protection and the obligations of the UNHCR vis-à-vis certain individuals are contingent on their status as refugees. However, it also calls on states, as parties to refugee instruments, to assume their responsibility for the determinations.115
23.32 With respect to seeking durable116 solutions, the UNHCR aims to achieve its mandate ‘by assisting Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities’.117 A third solution, alongside that of repatriation and assimilation or ‘local integration’, is resettlement in a third state.118 Thus, there are three options in so far as durable solutions are concerned—voluntary repatriation to the country of origin; integration in the country of asylum; and resettlement in a third state—all of which are tied up with states’ immigration and asylum policies.119
23.33 Voluntary repatriation to the country of origin is generally considered ‘the most appropriate solution’ in the majority of refugee situations.120 The UNHCR facilitates (p. 902) or promotes voluntary repatriation depending on the situation in the state of origin.121 It has also recognized that, in many situations, repatriation in and of itself will not suffice and that it will have to be coupled with efforts at reintegration, rehabilitation, and reconstruction; accordingly, the UNHCR has assisted in the process.122
23.34 In the context of large-scale voluntary repatriation, agreements are often concluded between the UNHCR, the host state, and the state of origin, which contain, inter alia, the conditions applicable to the repatriation, the duties of the relevant parties, and the rights of the refugees.123 However, voluntary repatriation is not without its difficulties.124
23.35 The rationale behind local integration as a durable solution is that, over time, the individual in question will be fully integrated in the country of asylum and be afforded rights that are ‘broadly commensurate’ with those of citizens of the state of asylum.125 (p. 903) There are legal, economic, social, and cultural dimensions to local integration, which are interrelated but also distinct.126 However, there has been reluctance on the part of certain states, particularly those that host large numbers of refugees, to allow local integration.
23.36 Resettlement involves the movement of refugees from the initial country of asylum to a third state for long-term or permanent settlement.127 At one time, it was viewed as subsidiary to voluntary repatriation and integration, and used as a last resort, when voluntary repatriation and local integration were not possible and resettlement was the only option to guarantee protection.128 The position has changed over time, with the UNHCR seeking to enhance the role of resettlement.129 In practice, it is often difficult to find states that are willing to take in refugees for resettlement.130
(p. 904) 23.37 Despite the effort invested in securing durable solutions, protracted refugee situations have increased over the years.131
23.38 In this context, in 2016 the UNHCR also sought proactively to encourage states to think beyond the three traditional durable solutions and examine ‘complementary pathways’ to solutions for refugees. These could include facilitated access to national labour migration schemes; assisted family reunification; and study visa programmes.132
23.39 At the time of its creation, the UNHCR was not envisaged to be an operational agency.133 However, almost from the outset, it undertook activities relating to material assistance on an ad hoc basis.134 Over time, the UNHCR began to provide material assistance to refugees and other displaced persons as a matter of course.135 This (p. 905) broadened the scope of the Office’s activities considerably and was a not uncontroversial development.136 Nonetheless, assistance and international protection are recognized to be linked.137
23.40 The UNHCR undertakes the administration of refugee camps. Although the state in which the refugee camp is located has the primary responsibility for the camp and its inhabitants, not infrequently the state delegates its administrative control to the UNHCR.138 The Office, in turn, contracts out the day-to-day running of the camp to its implementing partners, while retaining responsibility for protection matters.139 This has not been without its problems.140
23.41 The UNHCR is funded primarily through voluntary contributions.141 Only ‘administrative expenditures relating to the functioning of the Office of the High Commissioner’ are borne from the UN regular budget.142 In practice, this has related to a (p. 906) contribution towards ‘headquarters costs’.143 Accordingly, the funding provided from the UN regular budget is only a fraction of the total UNHCR budget.144 This means that the UNHCR is almost entirely reliant on voluntary funding.145 Most of the voluntary funding is provided by a small group of states.146 A certain amount of funding is also received from the private sector,147 including corporations, charitable foundations, and individuals.148 Other entities provide contributions in (p. 907) kind.149 Funding is also provided by intergovernmental organizations as well as UN entities.150 A significant proportion of voluntary contributions is earmarked by the contributing entity, thus removing the discretion of the UNHCR.151 The uncertain nature of the funding means that the UNHCR has to exercise caution in committing to long-term projects in case the required funding does not materialize. It also has to devote considerable time and resources to fundraising, which could otherwise be spent on the functions with which it has been tasked.
1 The idea of an office of a High Commissioner for Refugees has a long history, dating back to the time of the League of Nations. In 1921, the Council of the League of Nations created the position of High Commissioner for Russian Refugees, a position held by Dr Fridtjof Nansen. The High Commissioner was tasked, inter alia, with defining the concept of the Russian refugee and providing refugees with relief. During the same period, refugees from other countries also benefitted from League of Nations support. See Grahl-Madsen, The Status of Refugees in International Law, I: Refugee Character (1966), 125–33; Skran, ‘Historical Development of International Refugee Law’ in The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (ed Zimmerman, 2011), 7–14. Following the death of Nansen in 1930, various bodies were created to provide assistance to refugees, the most prominent of which were the Intergovernmental Committee on Refugees and the United Nations Relief and Rehabilitation Administration (UNRRA). Both bodies ceased to exist in 1947. See Haslam, ‘United Nations Relief and Rehabilitation Administration (UNRRA)’ in the Max Planck Encyclopedia of Public International Law (MPEPIL) (online); Woodbridge, UNRRA: The History of the United Nations Relief and Rehabilitation Administration (1950). The United Nations Relief and Rehabilitation Administration should not be confused with the United Nations that is the subject of this book. Following the creation of the UN, the General Assembly established the International Refugee Organization, upon the recommendation of the United Nations Economic and Social Council (ECOSOC) (GA Res 62 (I) (1946)). The International Refugee Organization itself ceased to exist in 1952 following the creation of the UNHCR. On the International Refugee Organization, see Holborn, The International Refugee Organization (1956); Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in Zimmerman (ed), above, 45–7; Melander, ‘International Refugee Organization (IRO)’ in MPEPIL (online); Schmal, ‘Article 1A, para 1 (Definition of the Term “Refugee”)’ in Zimmerman (ed), above, 272–9. On the position prior to the creation of UNHCR, see Weis, ‘The International Protection of Refugees’ (1954) 48 AJIL 193; Skran, Refugees in Inter-War Europe: The Emergence of a Regime (1995); Grahl-Madsen, above, 17–18; Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in Zimmerman (ed), above, 43–7; Schmal, ‘Article 1A, para 1 (Definition of the Term “Refugee”)’ in Zimmerman (ed), above, 247; Hathaway, ‘The Evolution of Refugee Status in International Law: 1920–1950’ (1984) 33 ICLQ 348; Holborn, Refugees: A Problem of Our Time, The Work of the United Nations High Commissioner for Refugees, 1951–1972 (vol I, 1975), pt I; Holborn, ‘The Legal Status of Political Refugees, 1920–1938’ (1938) 32 AJIL 680; Jennings, ‘Some International Law Aspects of the Refugee Question (1939) 20 BYIL 98; Loescher, The UNHCR and World Politics (2001), ch 2; Goodwin-Gill and McAdam, The Refugee in International Law (2007), 421–5; Loescher, Betts, and Milner, The United Nations High Commissioner for Refugees (2008), 7–10; Lewis, UNHCR and International Refugee Law (2012), 1–12.
2 The Resolution was adopted by 36 votes to 5, with 11 abstentions. The General Assembly had previously indicated its intention to establish a ‘High Commissioner’s Office for Refugees’. See GA Res 319A (IV) (1949). Accordingly, some date the creation of the UNHCR to 1949. In GA Res 319A (IV), the General Assembly recognized that the ‘problem of refugees’ was international in scope and that the UN had a responsibility in relation to the international protection of refugees. However, concern for refugees was not entirely altruistic; refugees were also part of inter-state political rivalries and affected by the then-existing global power dynamics. See Loescher, n 1, 6–8.
3 Statute of the UNHCR, Art 5, annexed to GA Res 428 (V) (1950). See also GA Res 319A (IV) (1949). This was due to the UNHCR’s being conceived of as an entity that would work on the issue of displacement in Europe resulting from the Second World War. See para 23.18.
4 See, eg, GA Res 727 (VIII) (1953). As the High Commissioner noted, ‘[t]he drafting of these resolutions and the process leading to their adoption became routine’. Report by the High Commissioner to the General Assembly on strengthening the capacity of the Office of the High Commissioner for Refugees to carry out its mandate, UN Doc A/AC.96/980 (2003), para 13.
5 GA Res 58/153 (2004). This followed a request by the High Commissioner, in 2003, for the removal of the five-year period. The High Commissioner noted: ‘Removing the time limitation would amount to a clear recognition that there is no end yet in sight to the refugee problem. It would facilitate strategic planning and the development of long-term policies on refugee protection, particularly with regard to protracted refugee situations. It would also open up possibilities of improving multi-year programming, to address these situations more comprehensively.’ Report by the High Commissioner, n 4, para 15. Some commentators have observed that the uncertain temporal limitation of the UNHCR prior to 2004 impeded its ability to engage in long-term activities (Loescher, Betts, and Milner, n 1, 75).
6 See ch 6, ‘Subsidiary Organs’.
7 Statute of the UNHCR, Arts 1 and 3. In practice, ECOSOC resolutions have rarely directed the UNHCR to undertake specific activities; instead, they recognize the UNHCR’s work or request information from it (Lewis, n 1, 52).
8 It has been suggested that, ‘in many ways, UNHCR more closely resembles a specialized agency than an organ of the General Assembly’ (Feller and Klug, ‘Refugees, United Nations High Commissioner for (UNHCR)’ in MPEPIL (online), para 12).
10 Art 11 of the Statute provided that this would be done through ECOSOC. However, in practice, the UNHCR submits its report directly to the General Assembly (see Lewis, n 1, 13). In GA Res 58/153 (2004), the General Assembly decided that, in addition to its annual reports to the General Assembly, the UNHCR should also report orally on an annual basis to ECOSOC. In addition, every 10 years, the annual report to the General Assembly is to include ‘a strategic review of the global situation of refugees and the role of the Office, prepared in consultation with the Secretary-General and the Executive Committee’.
12 Report of the United Nations High Commissioner for Refugees, UN Doc A/65/12 (2010), paras 61–2. The UNHCR and the WFP work together in the area of delivery of food to refugees. A Memorandum of Understanding between the two entities, concluded in 2002, was revised in 2010 to delineate more clearly the respective areas of responsibility. In 2016, the UNHCR and ILO signed a Memorandum of Understanding, building on an earlier Memorandum of Understanding signed in 1983. The UNHCR works with UNICEF on the issue of child protection and refugee children. The UNDP and the UNHCR work together in areas of common linkage, such as post-conflict reconstruction and the reintegration of returning refugees. The UNHCR and the World Health Organization (WHO) collaborate in a number of areas, including countering the outbreak of diseases in humanitarian settings, and improving health systems in response to refugee crises, particularly in Europe in 2015. The UNHCR also collaborates with the Joint United Nations Programme on HIV/AIDS, of which UNHCR is a co-sponsor. Further, the UNHCR has developed joint approaches in response to mixed movements of migrants and refugees with the IOM, particularly during crises in Europe and Yemen. This has included the creation of mixed migration task forces and joint strategies targeting human trafficking. See the various UNHCR Global Reports, eg UNHCR, Global Report 2015 (2016), 171.
13 For example, during the armed conflicts in the former Yugoslavia, the High Commissioner chaired the Humanitarian Issues Working Group of the International Conference on the Former Yugoslavia. During the conflict, the UNHCR was made the lead agency to coordinate UN humanitarian action. See Further Report of the Secretary-General pursuant to Security Council Resolution 749 (1992), S/23900 (1992), para 16; Cunliffe and Pugh, ‘UNHCR as Leader in Humanitarian Assistance: A Triumph of Politics over Law?’ in Refugee Rights and Realities: Evolving International Concepts and Regimes (eds Nicholson and Twomey, 1999). This was not the first time that the High Commissioner was requested by the Secretary-General or the General Assembly to coordinate a humanitarian operation. The High Commissioner was requested to do so in respect of the population movement resulting from the creation of Bangladesh in 1971. See Aga Khan, ‘Legal Problems Related to Refugees and Displaced Persons’ (1976) 149 RCADI 287, 345. In the following years, the General Assembly reiterated the cooperation and participation of the UNHCR in humanitarian endeavours ‘for which [the] Office has particular expertise and experience’ (GA Res 2956A (XXVII) (1972)). See also GA Res 3143 (XXVIII) (1973); GA Res 3271A (XXIX) (1974). For a historical consideration of the issue, see Holborn, Refugees: A Problem of Our Time, n 1, 111–28.
14 The IASC is an inter-agency committee for the coordination of humanitarian assistance, comprising UN entities such as the UNHCR, UNDP, and UNICEF, as well as non-UN entities such as InterAction and the International Council of Voluntary Agencies, and standing invitees such as the International Committee of the Red Cross (ICRC). It was created pursuant to GA Res 46/182 (1991). See also GA Res 48/57 (1993); IASC Terms of Reference (1998); see at https://interagencystandingcommittee.org/and para 21.14.
15 See Ingram, ‘The Future Architecture for International Humanitarian Assistance’ in Humanitarianism Across Borders: Sustaining Civilians in Time of War (eds Weiss and Minear, 1993); Loescher, Betts, and Milner, n 1, 85–9; Helton, The Price of Indifference (2002), 286.
16 The Statute of the UNHCR provides that the High Commissioner shall administer funds for the assistance of refugees and provide them to agencies qualified to administer the assistance (Statute of the UNHCR, Art 10). This includes NGOs. Indeed, in 2015, ‘UNHCR entrusted USD 1.26 billion to 938 partners (584 national NGOs, 168 international NGOs, 172 governmental partners and 14 UN agencies) for 1,732 projects to provide protection and assistance to, and help find solutions for, people of concern. The funds channelled to partners represented 38 per cent of UNHCR’s annual expenditure (USD 3.3 billion).’ UNHCR, Global Report 2015 (2016), 172. See further Stavropoulou, ‘Protection: The Office of the United Nations High Commissioner for Refugees Experience’ in The Human Rights Field Operation: Law, Theory and Practice (ed O’Flaherty, 2007), 207, at 216–17. The contribution of NGOs was recognized in the Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 13 December 2001, HCR/MMSP/2001/09.
18 ECOSOC Res 672 (XXV) (1958); GA Res 1166 (XII) (1957). As early as GA Res 319 (IV) (1949), the General Assembly indicated that ‘[m]eans should be provided whereby interested Governments, non-members of the United Nations, may be associated with the work of the High Commissioner’s Office’. The Statute of the UNHCR also envisaged the creation of an Advisory Committee. ECOSOC was to decide whether or not to establish such a committee after considering the views of the High Commissioner on the point. The Advisory Committee was intended to comprise representatives of states, both members and non-members of the UN, identified on the basis of their commitment to solving ‘the refugee problem’ (Statute of the UNHCR, Art 4). The Executive Committee replaced the United Nations Refugee Fund (UNREF) Executive Committee (GA Res 1166(XII) (1957)). The UNREF Executive Committee was established by ECOSOC at the request of the General Assembly (ECOSOC Res 565 (XIX) (1955); GA Res 832 (IX) (1954)). The UNREF Executive Committee in turn replaced the Advisory Committee on Refugees, which was established by ECOSOC in 1951. See ECOSOC Res 393 B (XIII) (1951).
19 The Executive Committee was composed initially of 25 states. As at October 2016, it had expanded to 98 states. For further details concerning the UNHCR Executive Committee (EXCOM) membership over time, see ‘EXCOM) membership by admission of members’, available at http://www.unhcr.org/uk/excom/scaf/574c362c4/excom-membership.html. The Executive Committee also comprises standing observers, composed of states, UN bodies, intergovernmental organizations, certain other entities (Palestine; Sovereign Order of Malta), and NGOs. See, eg, Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/65/12/Add.1 (2010), paras 3–8. There are mixed views on the increased size of the Executive Committee. Some have expressed the view that the increase in numbers has made the Committee ‘cumbersome’ and that ‘many of the broad contours of international politics are reflected in ExCom deliberations’ (Loescher, Betts, and Milner, n 1, 77). By contrast, others have suggested that, while making consensus more difficult to achieve, the enlarged membership ‘has contributed to ExCom becoming an increasingly representative forum for discussions, dialogue, and exchange, covering a variety of perspectives and issues’ (Feller and Klug, n 8, para 28).
21 GA Res 1166 (XII) (1957); ECOSOC Res 672 (XXV) (1958). The Executive Committee considers, inter alia, whether the budget is consistent with the Statute of the UNHCR, the other functions of the High Commissioner requested by the General Assembly, Security Council, and Secretary-General, and the Financial Rules for Voluntary Funds administered by the High Commissioner. See Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/65/12/Add.1 (2010), para 14.
23 Feller and Klug, n 8, para 23. See also Goodwin-Gill, ‘Refugee Identity and Protection’s Fading Prospect’ in Nicholson and Twomey (eds), n 13. Loescher has described this as a threat to the independence of the Office. See Loescher, n 1, 350 and 376.
24 GA Res 1166 (XII) (1957). As noted by Feller and Klug, n 8, para 22, the mandate of the Executive Committee has been ‘interpreted as providing ExCom with an advisory role on international protection of refugees’.
25 Executive Committee of the High Commissioner’s Programme, Rules of Procedure, UN Doc A/AC.96/187/Rev.6 (2005). It usually meets at the level of Permanent Representatives of state missions to the UN in Geneva.
26 See, eg, Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/64/12/Add.1 (2009). The reports contain a brief overview of the composition of the Executive Committee and its work during the course of the year, as well the Conclusions adopted by the Committee. On the latter, see n 27.
27 The conclusions are usefully compiled in UNHCR, Conclusions Adopted by the Executive Committee on the International Protection of Refugees, 1975–2009 (Conclusions Nos 1–109) and UNHCR, Thematic Compilation of Executive Committee Conclusions (2014). As noted by Feller and Klug, n 8, para 24, the Conclusions ‘address pertinent protection questions of a general or group specific nature. They not only provide policy guidance to UNHCR, but are also directly addressed to States.’ The UNHCR plays an influential role in the Conclusions, eg, selecting topics, providing the initial drafts of the Conclusions, and writing background papers. In recent years, member states have exercised more influence on topics and the preparation of the Conclusions than they did before. See Feller and Klug, n 8, para 27; Lewis, n 1, 54 and 67.
28 Some of the Conclusions or the statements contained therein have been referred to and followed in judicial decisions. Other judicial decisions refer to them but do not follow them. Still others do not cite to the Conclusions at all. For the approach of courts to the Executive Committee Conclusions, see McAdam, ‘Interpretation of the 1951 Convention’ in Zimmerman (ed), n 1, 112–14. See also Deschamp, Review of the Use of UNHCR Executive Committee Conclusions on International Protection (9 June 2008). Regardless of the extent to which they have been followed, the Conclusions have been described as ‘elements relevant to the interpretation of the 1951 Convention’. See Lauterpacht and Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Refugee Protection in International Law (eds Feller, Türk, and Nicholson, 2003), 98. On the Conclusions generally, see Sztucki, ‘The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme’ (1989) 1 IJRL 285.
29 The Conclusions influence the way in which ‘UNHCR exercises its international protection mandate and undertakes its advocacy activities with governments’ (Feller and Klug, n 8, para 26). See also Lewis, n 1, 53–4.
30 The Standing Committee of the Whole was established in 1995. See Decision on Executive Committee Working Methods, in Report of the Forty-Sixth Session of the Executive Committee of the High Commissioner’s Programme, UN Doc A/AC.96/860 (1995), para 32. The Standing Committee replaced the Sub-Committee of the Whole on International Protection. The latter was created pursuant to Executive Committee Conclusion No 1, (XXVI) (1975). Pursuant to Conclusion No 1, the Sub-Committee of the Whole was mandated to study in detail ‘the more technical aspects of the protection of refugees’ and to report back to the Committee. It is designed to offer ‘practical guidance and clear advice’ to the High Commissioner. See Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/65/12/Add.1 (2010), para 15. In 2016, the Standing Committee met in March, June, and September. See Report of the Work of the Standing Committee: Report of the Secretariat, UN Doc A/AC.96/1164 (2016), para 2.
31 Goodwin-Gill and McAdam, n 1, 430. The 2016 Meetings of the Standing Committee considered a number of substantive issues in addition to management, financial control, administrative oversight, and human resources; and governance issues, including international protection, regional activities and global programmes, and programme/protection policy. See Report on the Work of the Standing Committee, UN Doc A/AC.96/1164, 4 October 2016.
32 Statute of the UNHCR, Art 13. This selection process reflected a compromise between those states that wanted the High Commissioner to be appointed by the Secretary-General and those that wanted the High Commissioner to be elected by the General Assembly. A few controversies have arisen surrounding the appointment of the High Commissioner. The first High Commissioner was elected by the General Assembly by secret ballot, following the presentation of two possible candidates by the Secretary-General, his attempts to reach agreement on a single candidate having failed. Some decades later, another controversy arose surrounding the degree of consultation expected by states prior to the Secretary-General’s nomination of a candidate. On the latter, see ‘United Nations High Commissioner for Refugees: Election or Appointment?’ (1991) 3 IJRL 121.
33 Art 13 of the Statute provides: ‘The terms of appointment of the High Commissioner shall be proposed by the Secretary-General and approved by the General Assembly. The High Commissioner shall be elected for a term of three years, from 1 January 1951.’ In practice, the terms have varied considerably. For example, Sadako Ogata was elected as High Commissioner for a three-year term (GA Decision 45/319 (1990)). The term was extended for a period of five years (GA Decision 48/307 (1993)). Her term of office was extended again for a period of two years (GA Decision 53/305 (1998)). Ruud Lubbers was elected for a term of three years (GA Decision 55/310 (2000)). His term was extended for a period of two years (GA Decision 58/402 (2003)). Antonio Guterres was elected for a term of five years (GA Decision 59/420 (2005)). His term was extended for a second period of five years (GA Decision 64/419 (2010)).
35 For the views and experiences of various High Commissioners themselves, see van Heuven Goedhart, ‘The Problem of Refugees’ (1953-I) 82 RCADI 261; Aga Khan, n 13, 287; Hocké, ‘Beyond Humanitarianism: The Need for Political Will to Resolve Today’s Refugee Problem’ in Refugees and International Relations (eds Loescher and Monahan, 1989), 37; Hartling, ‘International Solidarity and the International Protection of Refugees’ in Congress on International Solidarity and Humanitarian Actions (ed International Institute of Humanitarian Law, 1980), 237–243; Ogata, The Turbulent Decade: Confronting the Refugee Crises of the 1990s (2005).
36 For changes to the UNHCR and its work during the tenure of the various High Commissioners, see Holborn, Refugees: A Problem of Our Time, n 1; Guest, ‘The United Nations, the UNHCR, and Refugee Protection: A Non-Specialist Analysis’ (1981) 3 IJRL 585; Loescher, n 1.
38 Feller and Klug, n 8, para 32, note that ‘[t]he Assistant High Commissioner for Operations is responsible for setting parameters for and oversight of global planning and implementation of major operations’, and the ‘Assistant High Commissioner for Protection has oversight over protection policy development, and ensures coherency and consistency in the integration of protection priorities into the management and delivery of operations’.
40 See UNHCR Organizational Structure at 1 July 2015, in ‘Biennial programme budget 2016–2017 of the Office of the United Nations High Commissioner for Refugees: Report by the High Commissioner’, 25 August 2015, Annex VI.
44 Other high-profile individuals support the UNHCR through other means, such as by fundraising and raising awareness. On the appointment of such persons, see the Guidelines for the Designation of Goodwill Ambassadors and Messengers of Peace (2010).
46 See http://www.unhcr.org/uk/where-we-work.html. For a pictorial representation of the various UNHCR field presences, see the maps in UNHCR, Global Report 2015 (2016), at 44–5. Field presences are established through the conclusion of cooperation agreements between the UNHCR and the state in question. See, eg, the UNHCR Model Cooperation Agreement, MNW24/10/01. See generally Zieck, UNHCR’s Worldwide Presence in the Field: A Legal Analysis of UNHCR’s Cooperation Agreements (2006). Field presences monitor the local situation and report back to Headquarters, and implement the protection and assistance policies. They consist of a mixture of local and international staff. On UNHCR field presences, see Stavropoulou, n 16, 217–18. Tensions sometimes result between field offices and Headquarters in relation to reporting obligations and the numbers of policies, guidelines, and directives that are required to be implemented. See Loescher, Betts, and Milner, n 1, 83.
47 The New York office is the UNHCR’s link to UN Headquarters in New York and states missions to UN Headquarters. The liaison office thus, inter alia, raises refugee issues and feeds the views of the UNHCR into various meetings at Headquarters.
48 See, in particular, Arts 1, 8, and 9 of the Statute. However, the Statute itself does not use the term ‘mandate’; instead, it uses the terms ‘functions’, ‘work’, and ‘competence’. See Aleinikoff, ‘The Mandate of the Office of the United Nations High Commissioner for Refugees’ in Research Handbook on International Law and Migration (eds Chetail and Bauloz, 2014), 390.
50 Regional refugee instruments have established a link to the High Commissioner’s supervisory function as regards the application of the provisions of the instruments. See, eg, Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), Art VIII; Cartagena Declaration on Refugees (1985), Recommendation (e). Art 8 of the Statute of the UNHCR provides that ‘[t]he High Commissioner shall provide for the protection of refugees falling under the competence of his Office by: (a) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto’. See UNHCR, Note on the Mandate of the High Commissioner for Refugees and his Office, Division of International Protection, October 2013, 6–7.
52 Art 9 of the Statute of the UNHCR provides that ‘the High Commissioner shall engage in such additional activities … as the General Assembly may determine, within the limits of the resources placed at his disposal’.
54 Despite the requirement in the Statute as to the entirely non-political character of the work of the UNHCR, its work is, in part, subject to politics. Its work may be directed by the General Assembly, which is a political organ of the UN. Its funding, primarily by a core group of states, might affect the tasks it carries out, particularly when donated funds are earmarked for particular projects. See section 6, ‘Funding’. The Executive Committee, which consists of states, has an input in the direction of the UNHCR, again potentially affecting the political character of the UNHCR’s work. The UNHCR relies on the cooperation of states, the actions of some of which may have given rise to the very refugee flows that the Office is addressing. On some of the tensions within the non-political mandate of the UNHCR, see Palley, ‘Legal Issues Arising from Conflicts between UN Humanitarian and Political Mandates—a Survey’ in The Problem of Refugees in the Light of Contemporary International Law Issues (ed Gowlland-Debbas, 1996), 145, at 153–5; Goodwin-Gill, n 23; Forsythe, ‘UNHCR’s Mandate: The Politics of Being Non-Political’, UNHCR Working Paper No 33 (2001). The mandate of the UNHCR also extends beyond refugees alone and includes stateless persons and internally displaced persons. See section 5.1, ‘Persons within the UNHCR’s mandate’.
The competence of the High Commissioner shall extend to:
A(i) Any person who has been considered a refugee under the Arrangements of 12 May 1926 and of 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization.
(ii) Any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it.
B Any other person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence.
Pursuant to Art 6A of the Statute, the competence of the High Commissioner ceases to apply in respect of persons defined in s A in the following circumstances:
(a) he has voluntarily re-availed himself of the protection of the country of his nationality; or
(b) having lost his nationality, he has voluntarily re-acquired it; or
(c) he has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(d) he has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or
(e) he can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, claim grounds other than those of personal convenience for continuing to refuse to avail himself of the protection of the country of his nationality. Reasons of a purely economic character may not be invoked; or
(f) being a person who has no nationality, he can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist and he is able to return to the country of his former habitual residence, claim grounds other than those of personal convenience for continuing to refuse to return to that country.
(a) who is a national of more than one country unless he satisfies the provisions of the preceding paragraph in relation to each of the countries of which he is a national; or
(b) who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; or
(d) in respect of whom there are serious reasons for considering that he has committed a crime covered by the provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.
See also Refugee Convention, Art 1D, E, and F. Art 7(c) of the Statute of the UNHCR and Art 1D of the Refugee Convention acknowledge the existence and functions of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), which was established by GA Res 302 (IV) (1949).
58 Art 1A(1) of the Refugee Convention is largely the same as Art 6A(i) of the UNHCR Statute. Art 1A(2) of the Refugee Convention is largely the same as Art 6B of the UNHCR Statute. On the notion of a ‘refugee’, see various in Zimmerman (ed), n 1, 247–610; Grahl-Madsen, n 1; Hathaway, The Law of Refugee Status (1991); Goodwin-Gill and McAdam, n 1, chs 3 and 4; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (reissued 2011).
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
He has been guilty of acts contrary to the purposes and principles of the United Nations.
61 See, eg, GA Res 2198 (XXI) (1966). The limitations were recognized even by the Conference of Plenipotentiaries. The Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, in Recommendation E, provided: ‘The Conference expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.’
62 The principal purpose of the Protocol was the removal of the limitations of the Refugee Convention. See Weis, ‘The 1967 Protocol Relating to the Status of Refugees and Some Questions of the Law of Treaties’ (1967) 42 BYIL 39; Einarsen, ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in Zimmerman (ed), n 1, 69.
As a matter of the law of treaties, the removal of the geographical and temporal limitations arises only in respect of states that are parties to the two Conventions. However, in practice, as of October 2016, only two states that were parties to the 1951 Convention were not parties to the 1967 Protocol (Madagascar, and St Kitts and Nevis). Three other states are parties to the 1967 Protocol but not to the 1951 Convention (Cape Verde, the US, and Venezuela), and in respect of them the broader definition applies.
63 See, eg, GA Res 1167 (XII) (1957). GA Res 1388 (XIV) (1959) authorized ‘the High Commissioner, in respect of refugees who do not come with the competence of the United Nations, to use his good offices in the transmission of contributions designed to provide assistance to these refugees’. Likewise, in GA Res 1673 (XVI) (1961), the High Commissioner was requested to ‘pursue his activities on behalf of the refugees within his mandate or those for whom he extends his good offices’. This followed a request from High Commissioner Felix Schnyder. See Loescher, n 1, 111–14. On many occasions since, the General Assembly has not distinguished between refugees within the mandate of the UNHCR and refugees to whom the High Commissioner would extend his good offices. Rather, it simply referred to refugees within the ‘competence’ of the High Commissioner, ‘persons of concern to the Office’, and ‘persons who require international protection’. See Feller and Klug, n 8, para 47. As indicated in the UNHCR Note on the Mandate of the High Commissioner for Refugees and his Office, Division of International Protection, October 2013, 3: ‘The repeated requirement or subsequent endorsement by the GA that the High Commissioner and his Office undertake certain responsibilities for protecting and assisting specific categories of persons elaborates upon and gives substance to the Office’s general mandate covering such persons.’ By 1992, the UNHCR Note on International Protection read ‘it is clear that, with protection at the core of UNHCR’s mandate, displacement, coupled with the need for protection, is the basis of UNHCR’s competence for the groups’. This was approved by the Executive Committee. See respectively, ‘Note on International Protection’, UN Doc A/AC.96/799 (1992); Executive Committee Conclusion No 68 (XLIII) (1992). See also Goodwin-Gill and McAdam, n 1, 24–32.
64 For example, in GA Res 49/169 (1994), the General Assembly calls upon states ‘to assist and support the High Commissioner’s efforts to continue to provide international protection and assistance … to persons who have been forced to flee or to remain outside their countries of origin as a result of danger to their life or freedom owing to situations of conflict’. See also GA Res 34/61 (1979); Executive Committee Conclusion No 22 (XXXII) (1981); UNHCR, Note on International Protection, UN Doc A/AC.96/593 (31 July 1981), para 17. See further Aleinikoff, n 48, 395–6.
65 UNHCR Guidelines on International Protection, No 12: Claims for refugee status related to situations of armed conflict and violence under Article 1(A)(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions, HCR/GIP/16/12, 2 December 2016.
66 The UNHCR’s competence in respect of such persons was originally thought to cease once the individual returned to his/her country of origin. Over time, however, it was recognized that the UNHCR’s mandate extended to monitoring the treatment of such persons and assisting with reintegration efforts. In EXCOM Conclusion No 40 (XXXVI) (1985), the Executive Committee noted that ‘the High Commissioner should be recognized as having a legitimate concern for the consequences of return … . Within the framework of close consultations with the State concerned, he should be given direct and unhindered access to returnees so that he is in a position to monitor fulfilment of the amnesties, guarantees or assurances on the basis of which the refugees have returned. This should be considered as inherent in his mandate.’ EXCOM Conclusion No 40 was endorsed by the General Assembly in GA Res 40/118 (1985). See also, eg, GA Res 49/169 (1994), in which the General Assembly ‘calls upon the High Commissioner, in cooperation with States concerned, to promote, facilitate and coordinate the voluntary repatriation of refugees, including the monitoring of their safety and well-being on return’; and Executive Committee Conclusion Nos 74 (XLV) (1994) and 101 (LV) (2004).
67 The situation of asylum-seekers is, in part, contemplated by Art 31 of the 1951 Refugee Convention as regards their treatment when they have entered a country without authorization and their situation has not yet been regularized. However, the UNHCR maintains that the fundamental principle of non-refoulement must be observed in respect of asylum-seekers, and that asylum-seekers must be entitled to contact the UNHCR, which ‘shall be given the possibility of exercising its function of international protection and shall be allowed to supervise the well-being of persons entering reception or other refugee centres’. See Executive Committee Conclusion No 22 (XXXII) (1981). See also Executive Committee Conclusion No 71 (XLIV) General (1993) as to temporary protection for asylum-seekers; Executive Committee Conclusion No 85 (XLIX) (1998) as to the standards applicable to transferring asylum-seekers whose claims have yet to be determined from the state in which the claim was submitted to a third country; and GA Res 36/125 (1981), in which the General Assembly urges governments to support the High Commissioner’s efforts by ‘protecting asylum-seekers in situations of large-scale influx’. UNHCR activities in respect of asylum-seekers include ‘promulgation of eligibility guidelines for applicants from particular countries of origin, advocacy for rights for asylum-seekers (such as work-authorization and limits on detention), capacity-building and quality assurance projects regarding state asylum procedures, the provision of legal assistance, connecting asylum applicants with lawyers and other support groups, contacting family members, and conducting best interest determinations for children’ (Aleinikoff, n 48, 398).
68 Art 6(A)(ii) of the Statute of the UNHCR refers to a person ‘who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it’. See also Refugee Convention (1951), Art 1(A)(2). On the UNHCR’s mandate in respect of stateless persons, see Seet, ‘The Origins of UNHCR’s Global Mandate on Statelessness’ (2016) 28 IJRL 7; Manly, ‘UNHCR’s Mandate and Activities to Address Statelessness’ in Nationality and Statelessness under International Law (eds Edwards and van Waas, 2014).
69 Convention on the Reduction of Statelessness, Art 11. Pursuant to GA Res 3274 (XXIX) (1974), the UN body in question was provisionally the UNHCR. In GA Res 31/36 (1976), the UNHCR was requested to continue to carry out the relevant functions. On the drafting of the provision and the history behind the designation of UNHCR, see Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (1995) 7 IJRL 232.
70 In GA Res 50/152 (1996), the General Assembly encouraged the High Commissioner to ‘continue her activities on behalf of stateless persons, as part of her statutory function of providing international protection and of seeking preventive action, as well as her responsibilities under’ certain General Assembly resolutions. The General Assembly also requested the Office of the High Commissioner ‘to promote accession to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the reduction of statelessness as well as to provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested States’. This followed Executive Committee, Conclusion No 78 (XLVI) (1995). In GA Res 61/137 (2006), the General Assembly noted ‘the work of the High Commissioner in regard to identifying stateless persons, preventing and reducing statelessness, and protecting stateless persons, and urge[d] the Office of the High Commissioner to continue to work in this area in accordance with relevant General Assembly resolutions and Executive Committee conclusions’. See Executive Committee, Conclusion No 106 (LVII) (2006).
73 In Conclusion No 106 (LVII) (2006), the Executive Committee called upon the UNHCR, inter alia, ‘to engage in or to renew efforts to identify stateless populations and populations with undetermined nationality’, to share research relating to stateless persons, to report to the Executive Committee on the work undertaken with respect to stateless persons, to provide technical advice and support to states on the subject, to disseminate information to states, and to train state officials on issues relating to stateless persons. See also Executive Committee Conclusions Nos 50 (XXXIX) (1988), 65 (XLII) (1991), and 68 (XLIII) (1992).
74 On the work of UNHCR in this context, see UNHCR, ‘UNHCR Action to Address Statelessness: A Strategy Note’ (2010) 22 IJRL 297; ‘Note on International Protection: Addendum, Note on Statelessness: Report of the High Commissioner’, UN Doc A/AC/96/1098/Add.1 (2011); UNHCR, Global Action Plan to End Statelessness 2014–2024 (November, 2014). See also Batchelor, ‘UNHCR and Issues Related to Nationality’ (1995) 14 RSQ 91; Darling, ‘Protection of Stateless Persons in International Asylum and Refugee Law’ (2009) 21 IJRL 742; van Krieken, ‘The High Commissioner for Refugees and Stateless Persons’ (1979) 26 NILR 24; Manly, n 68.
76 Prior to this time, the UNHCR engaged in activities vis-à-vis internally displaced persons on an ad hoc basis. A UNHCR study refers to its involvement with internally displaced persons in a number of situations, including Bangladesh (1971), South Sudan (1972), Angola (1974), Guinea-Bissau (1974), Mozambique (1974), Indochina (1975), Ethiopia (1979), Uganda (1979), Zimbabwe (1980), Chad (1981), Nicaragua (1987), and Sri Lanka (1988). UNHCR, UNHCR’s Operational Experience with Internally Displaced Persons (1994). During this period, resolutions of ECOSOC and the General Assembly referred to the UNHCR’s work with internally displaced persons. See, eg, ECOSOC Res 1655 (LII) (1972); ECOSOC Res 1705 (LIII) (1972); GA Res 2958 (XXVII) (1972); GA Res 32/68 (1977). In the last of those resolutions, the General Assembly referred to ‘the outstanding work which has been performed by the Office of the High Commissioner in providing international protection and material assistance to refugees and displaced persons as well as in promoting permanent solutions to their problems’. See further Goodwin-Gill and McAdam, n 1, 26–9; Loescher, Betts, and Milner, n 1, 106–7. In the 1990s, there was a renewed attempt to reinforce the protection of internally displaced persons in international law. See, in particular, the drafting of the Guiding Principles on Internal Displacement. On which, see Kälin, Guiding Principles on Internal Displacement: Annotations (2008); Phuong, The International Protection of Internally Displaced Persons (2004). There was also a push for the UNHCR to play a leading role in this regard. See, eg, GA Res 53/125 (1999). See also the statements of the US Ambassador to the UN, Richard Holbrooke, in March 2000, reproduced in Helton, n 15, 127–30; and the statement of High Commissioner Sadako Ogata, reproduced in Nanda, ‘Comments on: The Legal Basis of International Jurisdiction to Act with Regard to the Internally Displaced’ in Gowlland-Debbas (ed), n 54, 138–9.
77 In GA Res 47/105 (1992), the General Assembly welcomed ‘efforts by the High Commissioner, on the basis of specific requests from the Secretary-General or the competent principal organs of the United Nations and with the consent of the concerned State, to undertake activities in favour of internally displaced persons, taking into account the complementarities of the mandates and expertise of other relevant organizations’. One year later, in GA Res 48/116 (1993), the General Assembly reaffirmed its ‘support for the High Commissioner’s efforts, on the basis of specific requests from the Secretary-General or the competent principal organs of the United Nations and with the consent of the concerned State, and taking into account the complementarities of the mandates and expertise of other relevant organizations, to provide humanitarian assistance and protection to persons displaced within their own country in specific situations calling for the Office’s particular expertise, especially where such efforts could contribute to the prevention or solution of refugee problems’.
78 GA Res 47/105 (1992) and GA Res 48/116 (1993), and amended by GA Res 51/75 (1996). GA Res 47/105 and GA Res 48/116, unlike GA Res 51/75 (1996), referred to a request on the part of the ‘principal’ UN organs. GA Res 48/116 also referred to ‘specific situations calling for the Office’s particular expertise, especially where such efforts could contribute to the prevention or solution of refugee problems’. See also Executive Committee in Conclusion No 75 (XLV) (1994). See further Phuong, n 76, 82–3.
81 Feller and Klug, n 8, para 58. The UNHCR also has regard to whether or not there is a ‘link’ between the situation of internal displacement and its mandate activities, eg if there is a mixed population of returnees and internally displaced persons, or where internally displaced persons have a preventive or containing impact on refugee flows. See UNHCR, UNHCR’s Role in Support of an Enhanced Humanitarian Response to Situations of Internal Displacement: Policy Framework and Implementation Strategy, EC/58/SC/CRP.18 (2007), para 17. On the UNHCR’s mitigation strategies in respect of internally displaced persons, see UNHCR, The Protection of Internally Displaced Persons and the Role of the UNHCR (2007), paras 34–51. See also Ogata, ‘Keynote Address’ in Gowlland-Debbas (ed), n 54, xxi.
82 The assignment was approved by the Executive Committee (Conclusion No 102 (LVI) (2005)). The UNHCR may also assume the lead protection role with respect of non-conflict-related internally displaced persons if it is requested to do so, such as with respect to the floods in Pakistan in 2010 (Aleinikoff, n 48, 408–9). On clusters, see ch 21, ‘Disaster Relief’. On UNHCR involvement in the cluster system, see UNHCR, UNHCR’s Role in Support of an Enhanced Humanitarian Response to Situations of Internal Displacement: Update on UNHCR’s Leadership Role within the Cluster Approach and IDP Operational Workplans (May 2007). As noted by Feller and Klug, n 8, para 61: ‘The cluster arrangement does not formally change UNHCR’s mandate. Rather, it rationalizes the way that UN agencies work together and promotes a more coherent, consistent and predictable response. The assumption of cluster responsibilities is expected to lead to a significant increase in UNHCR engagement in IDP situations. Over the long-term, this may impact on the identity of the Office.’
On the expansion of the competence ratione personae beyond refugees alone, see 23.22 and 23.23, above.
86 Statute of the UNHCR, Art 1. In the discussions leading up to the creation of the UNHCR, it was apparent that states had different views as to the role of the intended entity. Certain states, in particular the US, wanted an entity with limited functions and that focused on legal protection. Likewise, the UK took the view that refugees were primarily the concern of the relevant host state. Other states, primarily France, preferred the entity to have an operational mandate. Still other states, primarily India and Pakistan, wanted the entity to have broader functions and to provide relief assistance. See Loescher, n 1, 43–5. The Statute, as adopted, primarily reflects the views of the US and the UK. Over time, the UNHCR has provided activities akin to that wished for by states such as India and Pakistan, in particular providing relief and assistance. See section 5.2.3, ‘Material assistance’. Due to the temporal limits of the UNHCR, the limited mandate, and the precarious funding model, it has been said that ‘[n]o international organization has had such an unpromising beginning’ (Loescher, n 1, 50).
87 See, eg, Goodwin-Gill and McAdam, n 1, 426. Furthermore, the international protection component of the mandate encompasses, in certain respects, the permanent solutions component. Art 8 of the Statute of the UNHCR, on protection, includes the following activities of the UNHCR: ‘Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities’ and ‘Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States’.
88 For example, two High Commissioners (Jean-Pierre Hocké and Sadako Ogata) prioritized repatriation. See Hocké, n 35, 37; Loescher, Betts, and Milner, n 1, 37–8 and 48–9. See further, on the downgrading of the international protection function, Goodwin-Gill , n 23, 235–7, and on the downgrading of the Division of International Protection, Anonymous, ‘The UNHCR Note on International Protection You Won’t See’ (1997) 9 IJRL 267 (later attributed to Arthur Helton: see Goodwin-Gill, ‘Arthur C Helton: 1949–2003’ (2003) 15 IJRL 354).
89 Feller and Klug, n 8, para 68. The close connection between international protection and durable solutions is not infrequently stressed. See, eg, Executive Committee Conclusion No 50 (XXXIX) (1988), para (e).
91 It has been said: ‘In the 1960s and 1970s … UNHCR became increasingly involved in refugee situations in the Third World. The 1980s saw it take on a growing role in providing assistance in refugee camps and shifting away from its traditional focus on legal protection. The 1990s saw it assume a wider role in providing humanitarian relief and engaging in repatriation operations. The late 1990s and early twenty-first century have seen UNHCR take on ever greater responsibility for the protection of internally displaced persons … who, unlike refugees, have not crossed an international border’ (Loescher, Betts, and Milner, n 1, 3). The broadened role is also apparent from the title of the agenda item of the annual session of the General Assembly under which the reports of the UNHCR are considered. The agenda item of the 66th session of the General Assembly is entitled ‘Report of the United Nations High Commissioner for Refugees, questions relating to refugees, returnees and displaced persons and humanitarian questions’ (UN Doc A/66/250 (2011)).
92 See generally, Goodwin-Gill, n 23; Cunliffe and Pugh, n 13; Hathaway, ‘New Directions to Avoid Hard Problems: The Distortion of the Palliative Role of Refugee Protection’ (1995) 8 JRS 288; Anonymous, n 88; Barutciski, ‘A Critical View on UNHCR’s Mandate Dilemmas’ (2002) 14 IJRL 365.
93 EXCOM Conclusion No 95 (LIV) (2003). The notion of international protection has been described in various ways. For example, in its 2011 Note on International Protection, Report of the High Commissioner, UN Doc A/AC.96/1098 (2011), para 3, the UNHCR described it as ‘ensuring that the range of rights and needs of people who are not protected by their own country are met’. In GA Res 65/194 (2010), the General Assembly emphasized that it includes ‘the promotion and facilitation of, inter alia, the admission, reception and treatment of refugees in accordance with internationally agreed standards and the ensuring of durable, protection-oriented solutions, bearing in mind the particular needs of vulnerable groups and paying special attention to those with specific needs’.
Aleinikoff, n 48, 399, has noted that ‘[i]n UNHCR’s founding documents, the concept of protection focuses on legal rights of admission, recognition, and solutions. … This was consistent with the original understanding of UNHCR ensuring the provision of “surrogate” or “substitute” protection for persons not able to rely on their countries of origin to do so. Over the years, the modalities of protection have expanded dramatically … UNHCR’s description of protection has at times merged into assistance activities, such as provision of emergency shelter, food and medical care’ (footnotes omitted). On the notion of international protection, see Kälin, ‘Supervising the 1951 Convention relating to the Status of Refugees: Article 35 and Beyond’ in Feller, Türk, and Nicholson (eds), n 28, 619–24; Goodwin-Gill, ‘The Language of Protection’ (1989) 1 IJRL 6; Helton, ‘What is Refugee Protection?’ (1990) 2 (Special Issue) IJRL 119; Goodwin-Gill and McAdam, n 1, 421 et seq.
94 Statute of the UNHCR, Art 8. It is not immediately apparent from the language of Art 8 whether the list of functions is illustrative or exhaustive. Subsequent practice of the UNHCR, to which states have consented, indicates that the list is illustrative.
95 Note on International Protection, Report of the High Commissioner, UN Doc A/AC.96/1098 (2011), para 3. Along similar lines, Feller and Klug, n 8, para 70, note: ‘The international protection of refugees begins with securing their admission to a safe country of asylum, and encompasses the granting of asylum and ensuring respect for their fundamental human rights, including the right not to be forcibly returned to a country where safety or survival is threatened (the principle of non-refoulement). It ends with the attainment of a durable solution.’ See also Lewis, n 1, 19–20.
96 Holborn, Refugees: A Problem of Our Time, n 1, 100, notes that ‘from the beginning the practice of the UNHCR has been to ignore the obscurities of par. 8 [Art 8] and to rely instead on the broad phrasing of the paragraph and the general tenor of the Statute to support its contention that international protection should be interpreted broadly’.
97 ‘Supervisory responsibility attempts to promote common understanding of rules and their application by states parties in a consistent manner through the actions of an entity different from the state—an entity that rises above national perspectives and seeks to reconcile competing interests.’ Türk, ‘The UNHCR’s Role in Supervising International Protection Standards in the Context of its Mandate’ in The UNHCR and the Supervision of International Refugee Law (ed Simeon, 2013), 41. The role of the UNHCR in supervising the application of refugee conventions is regularly stressed. See, eg, GA Res 52/103 (1997); EXCOM Conclusion No 77 (XLVI) (1995); EXCOM Conclusion No 81 (XLVII) (1997).
On the UNHCR’s supervisory responsibility, see Kälin, n 93; Zieck, ‘Article 35 of the 1951 Convention/Article II of the 1967 Protocol’ in Zimmerman (ed), n 1, 1459; Türk, ‘UNHCR’s Supervisory Responsibility’ (2001) 14 RQDI 135.
98 Türk, ‘The UNHCR’s Role in Supervising International Protection Standards’, n 97, 41, has suggested that ‘the UNHCR has an inherent (implied) competence to define and adopt such measures that are reasonably necessary in order to achieve the purpose of the international legal framework governing the protection of people of its concern’. Türk goes on to note (ibid, at 53) that ‘The lack of precision on how the UNHCR would implement its supervisory role has been turned into an advantage, since it did not circumscribe narrowly the powers of the institution but enabled it to develop them organically.’
100 See, eg, Refugee Convention (1951), Art 35; Protocol relating to the Status of Refugees (1967), Art II; Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), Art VIII; Cartegena Declaration on Refugees (1984), Recommendation II(e). See also Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/MMSP/2001/09, 13 December 2001. In that Declaration, states parties reaffirmed ‘the fundamental importance of UNHCR as the multilateral institution with the mandate to provide international protection to refugees and to promote durable solutions’, and recalled their ‘obligations as States Parties to cooperate with UNHCR in the exercise of its functions’.
102 See Türk, ‘The Role of UNHCR in the Development of International Refugee Law’ in Nicholson and Twomey (eds), n 13; Lewis, ‘UNHCR’s Contribution to the Development of International Refugee Law: Its Foundations and Evolution’ (2005) 17 IJRL 67; Lewis, n 1.
103 Art 8(a) of the Statute of the UNHCR. The Executive Committee, inter alia, has recognized ‘the importance of developing standards of protection by maintaining a constant dialogue with Governments, non-governmental organizations and academic institutions and of filling lacunae in international refugee law’ (EXCOM Conclusion No 29 (XXXIV) (1983)). For its part, the UNHCR has argued that it has a ‘doctrinal responsibility to work for the progressive development of international refugee law. In essence, this function involves promoting, interpreting, safeguarding and developing the fundamental principles of refugee protection. The immediate goal is to strengthen international commitments to receive refugees, as well as to combat discrimination and negative practices jeopardizing refugees and to search for durable solutions to their problems which give prime importance to humanitarian considerations and respect for basic rights. For the longer term, the objective is to develop and promote a far-reaching regime of refugee protection based on solid legal foundations and internationally recognized principles’ (UNHCR, Note on International Protection, UN Doc A/AC.96/728, 2 August 1989, para 3).
104 The UNHCR played an influential role in the adoption of the 1967 Protocol. It sought to remove the temporal and geographical limitations of the 1951 Convention and, following the convening of a group of experts, suggested the conclusion of a protocol to the 1951 Convention. The proposal was confirmed by the Executive Committee, which recommended that the draft Protocol be submitted to the General Assembly through ECOSOC. ECOSOC took note of the proposal with approval, and the General Assembly took note of the Protocol. See ECOSOC Res 1186 (XLI) and GA Res 2198 (XXI) (1966). The Protocol was then transmitted to the Secretary-General for circulation to states. See Weis, n 62; Einarsen, n 62, 68–73; Türk, n 102. The UNHCR also played an influential role in the drafting of the 1957 Agreement relating to Refugee Seamen, the 1967 Declaration on Territorial Asylum, and an attempted Convention on Territorial Asylum. See Weis, ‘The United Nations Declaration on Territorial Asylum’ (1969) 7 Canadian YIL 92; Weis, ‘The Draft United Nations Convention on Territorial Asylum’ (1979) 50 BYIL 151; Türk, n 102; Lewis, n 1, 25–9. The UNHCR was also involved in the creation of regional instruments, such as the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), the Kampala Convention (2009), and the European Convention on Nationality (1997). See Feller and Klug, n 8, para 80; Lewis, n 1, 33–7.
105 UNHCR staff in Geneva and in countries around the world have encouraged states to ratify or accede to the 1951 Convention and the 1967 Protocol. The UNHCR has also been ‘instrumental’ in the adoption of General Assembly resolutions and Executive Committee conclusions that encourage states to ratify or accede to the Convention and Protocol. It has further obtained the inclusion of the 1951 Convention and 1967 Protocol in the UN annual treaty event, which encourages ratification and accession to treaties (Lewis, n 1, 44 and 133).
106 See, in particular, UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979, revised edn 1992); UNHCR, Guidelines on International Protection, Nos 1–11 (2002–2015). Both sets of documents were issued at the request of the Executive Committee. See Executive Committee Conclusion No 8 (XXVIII) (1977) and Agenda for Protection, UN Doc A/AC./96/965/Add.1 (2002). The Guidelines explicitly note that they are ‘intended to provide legal interpretative guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determinations in the field’. The Handbook notes that it is ‘is meant for the guidance of government officials concerned with the determination of refugee status in the various Contracting States’. Both the Handbook and the Guidelines are considered influential in certain jurisdictions, while given less weight in others. On the Handbook and the Guidelines, see Hathaway, The Rights of Refugees under International Law (2005), 114–8; McAdam, n 28, 110–14. On the UNHCR’s work in this regard more broadly, see Lewis, n 1, 60–73.
107 The UNHCR’s position on the non-refoulement obligation of states, expressed in its Notes on International Protection, influenced states’ views on the subject. The Executive Committee regularly noted with concern violations of the principle, and reaffirmed its fundamental importance. See, eg, Conclusion No 44 (XXXVII) (1986) and Conclusion No 46 (XXXVIII) (1987). In the 2001 Declaration of States Parties, states parties indicated that the non-refoulement principle is ‘embedded in customary international law’ (Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/MMSP/2001/09, 13 December 2001).
109 The UNHCR speaks to the interpretation of a particular point of law at issue, rather than advocating on the facts of a particular case. See, eg, the intervention of the UNHCR in Zainab Esther Fornah, published in (2007) 19 IJRL 339; the intervention of UNHCR in Al-Rawi, published in (2008) 20 IJRL 675. See further Zieck, ‘UNHCR’s Supervisory Responsibility’, n 97, 1497–8; Goodwin-Gill and McAdam, n 1, 427.
110 The Executive Committee has ‘reaffirmed that the promotion and dissemination of refugee law is one of the fundamental responsibilities of the Office of the United Nations High Commissioner for Refugees and is directly related to the effective international protection of refugees’ (Executive Committee Conclusion No 51 (XXXIX) (1988)).
112 The value of the UNHCR’s playing a meaningful role in refugee status determinations was recognized by the Executive Committee in Conclusion No 28 (XXXIII) (1982). See further Türk, ‘UNHCR’s Supervisory Responsibility’, n 97, 151–4.
113 The High Commissioner has reported that, during the period 1 July 2013 until 30 June 2014, the UNHCR carried out ‘registration and refugee status determination (RSD) in more than 60 countries and territories, registering 203,200 individuals or 19 per cent of all individual asylum applications lodged during the year’: Report of the United Nations High Commissioner for Refugees Covering the period 1 July 2013–30 June 2014, UN Doc A/69/12 (2014), para 23. During the period 2014–15, the UNHCR ‘received a record 245,700 applications for refugee status under its mandate’: Report of the United Nations High Commissioner for Refugees Covering the period 1 July 2014–30 June 2015, UN Doc A/70/12 (2015), para 20.
114 For many years, each UNHCR office had its own refugee status determination procedure, albeit with certain shared characteristics. However, these procedures and standards were open to criticism, eg, for lack of due process. See, eg, Alexander, ‘Refugee Status Determination Conducted by UNHCR’ (1999) 11 IJRL 251. In order to improve consistency across offices, the UNHCR elaborated a manual for UNHCR refugee status determinations, which contains the procedure and process followed. See UNHCR, Procedural Standards for Refugee Status Determinations under UNHCR’s Mandate (undated). This has helped standardize determinations. However, concerns remain. See the open letter to the High Commissioner from various NGOs, published in (2007) 19 IJRL 161; Kagan ‘The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination’ (2006) 18 IJRL 1.
120 See, eg, Executive Committee, Conclusion No 18 (XXXI) (1980) and Conclusion No 101 (LV) (2004). See also GA Res 60/128 (2005). This was not always the case. In the first few years of the UNHCR’s work, local integration and resettlement were the primary durable solutions. Feller and Klug, n 8, para 88, note that, during the initial period of the UNHCR’s work, ‘[m]ost of the world’s refugees were from communist States, and UNHCR’s principal donors considered it inconceivable that refugees would choose to return to their homes. However, as of the mid-1980s, when the focus of many major refugee programmes had shifted to developing regions, increased emphasis was laid on voluntary repatriation, in view of limited opportunities for local integration.’ On voluntary repatriation, see UNHCR, Handbook on Voluntary Repatriation: International Protection (1996); Executive Committee, Conclusion No 18 (XXXI) (1980), 40 (XXXVI) (1985) and No 101 (LV) (2004); UNHCR, Note on International Protection UN Doc A/AC.96/694 (1987), paras 45–61; Goodwin-Gill, ‘Voluntary Repatriation: Legal and Policy Issues’ in Loescher and Monahan (eds), n 35, 255; Goodwin-Gill and McAdam, n 1, 492–7; Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis (1997); Hathaway, n 106, 917–53; Takahashi, ‘The UNHCR Handbook on Voluntary Repatriation: The Emphasis of Return over Protection’ (1997) 9 IJRL 593; (2004) 23 RSQ Special Issue, and (1997) 9 IJRL Special Issue.
121 There is a distinction between facilitation and promotion of voluntary repatriation. As noted by Goodwin-Gill and McAdam, n 1, 494, facilitation ‘presupposes an informed and voluntary decision by an individual’, while promotion ‘anticipates varying degrees of encouragement by outside bodies’. Feller and Klug, n 8, paras 92–5, note that the ‘UNHCR may facilitate or actively promote repatriation, depending on the conditions prevailing in the country of return. Where these are less secure or less favourable to durable return, the Office facilitates rather than promotes return. Facilitation assistance may range from providing information, to logistical support, basic reintegration packages and protection monitoring in the country of origin. UNHCR actively promotes repatriation when a significant change has occurred in the country of origin, leading to a strong expectation of a sustainable return … . Measures to promote voluntary repatriation include, in addition to information, logistical support, protection monitoring, and assistance packages, the facilitation of dialogue between the host country, the country of origin and the refugees.’
122 See UNHCR, Handbook on Voluntary Repatriation: International Protection (1996); UNHCR, Handbook for Repatriation and Reintegration Activities (2004). See also Executive Committee, Conclusion No 18 (XXXI) (1980) and Conclusion No 40 (XXXVI) (1985); GA Res 59/172 (2004).
123 See, eg, the Tripartite Agreement between the Government of Ethiopia, the Government of Sudan, and UNHCR, for the Voluntary Repatriation of Sudanese Refugees in Ethiopia back to the Sudan, 27 February 2006.
124 See, eg, the repatriation of members of the Rohingyan refugees from Bangladesh to Burma in 1994–5, discussed in Loescher, n 1, 284–6. See further Chimni, ‘The Meaning of Words and the Role of UNHCR in Voluntary Repatriation’ (1993) 5 IJRL 442; Okoth-Obbo, ‘Coping with a Complex Refugee Crisis in Africa: Issues, Problems and Constraints for Refugee and International Law’ in Gowlland-Debbas (ed), n 54, 16–17; Goodwin-Gill, n 23, 243–4.
125 Executive Committee, Conclusion No 104 (LVI) (2005). See further UNHCR, Global Consultation on International Protection: Local Integration, EC/GC/02/6 (2002), reproduced in (2003) 22 RSQ 239; Hathaway, n 106, 977–90.
126 GA Res 60/129 (2005). The Executive Committee has recognized that local integration is ‘a dynamic and multifaceted two-way process, which requires efforts by all parties concerned, including a preparedness on the part of refugees to adapt to the host society without having to forego their own cultural identity, and a corresponding readiness on the part of host communities and public institutions to welcome refugees and to meet the needs of a diverse population’, and that it ‘needs to be undertaken in a manner that sustains the viability of local communities affected by the presence of refugees and that a failure to do so may result in an unreasonable burden being placed on host countries’ (Conclusion No 104 (LVI) (2005)).
127 As with voluntary repatriation, the UNHCR has recognized that the mere act of resettlement alone will not suffice; assistance in integration will be important. On resettlement, see Executive Committee Conclusion No 22 (XXIII) (1981) and No 67 (XLII) (1991); UNHCR, Resettlement Handbook (2011); UNHCR, New Directions for Resettlement Policy and Practice, EC/51/SC/INF.2, 14 June 2001; UNHCR Resettlement Section, ‘Resettlement: An Instrument of Protection and a Durable Solution’ (1997) 9 IJRL 666; Troeller, ‘UNHCR Resettlement as an Instrument of International Protection: Constraints and Obstacles in the Arena of Competition for Scarce Humanitarian Resources’ (1991) 3 IJRL 546; Troeller, ‘UNHCR Resettlement: Evolution and Future Direction’ (2002) 14 IJRL 85; Chimni, ‘From Resettlement to Involuntary Repatriation: Towards a Critical History of Durable Solutions to Refugee Problems’ (2004) 23 RSQ 55; Bach, ‘Third Country Resettlement’ in Loescher and Monahan (eds), n 35, 313; Goodwin-Gill and McAdam, n 1, 497–9; Hathaway, n 106, 963–77.
128 See Executive Committee Conclusion No 22 (XXIII) (1981), IV(4); Resettlement as an Instrument of Protection: Traditional Problems in Achieving this Durable Solution and New Directions in the 1990s, EC/SCP/65, 9 July 1991, para 2. Resettlement found favour following the Second World War as a durable solution for European refugees. It was used as a primary solution in the 1970s and 1980s, eg, in respect of Indo-Chinese refugees. See Feller and Klug, n 8, para 98. However, as a result of these large-scale programmes, in certain quarters resettlement came to be seen as ‘having been divorced in its functioning from fundamental principles of protection and more of a “migration programme in disguise”’ (UNHCR, New Directions for Resettlement Policy and Practice, EC/51/SC/INF.2, 14 June 2001, para 2). Thus, in the early 1990s, it fell out of favour and came to be seen as ‘a last resort where no other durable solutions are available’ (GA Res 46/106 (1991)); UNHCR, Resettlement as an Instrument of Protection: Traditional Problems in Achieving this Durable Solution and New Directions in the 1990s, EC/SCP/65, 9 July 1991.
130 According to the UNHCR, in 2014, the number of persons in need of resettlement was more than 950,000, whereas the number of places offered was approximately 80,000 on an annual basis. See Progress Report on Resettlement, EC/65/SC/CRP.11 (2014), para 5. The UNHCR estimated that in 2015, over 1,150,000 refugees were in need of resettlement. See UNHCR, Global Projected Resettlement Needs 2016 (2015), 12.
131 The UNHCR defines a ‘protracted refugee situation’ as involving some 25,000 refugees in exile for a period longer than five years, recognizing that this is a ‘crude measure’ for conceptualizing the notion. See Executive Committee of the High Commissioner’s Programme Standing Committee, Protracted Refugee Situations, EC/54/SC/CRP.14 (2004). Both the numbers involved and the length of the protraction have increased over the years. See UNHCR, The State of the World’s Refugees 2012: In Search of Solidarity (2012), ch 3. This has led to debate as to the utility of refugee camps and the so-called ‘warehousing’ of refugees.
132 See UNHCR and Migration Policy Institute Europe, ‘Additional Pathways for Refugees: Exploring the Potential and Addressing Barriers’, 11–12 February 2016; Report of the United Nations High Commissioner for Refugees covering the period 1 July 2015–30 June 2016, UN Doc A/71/12, para 33.
134 At the request of the first High Commissioner, Gerrit Jan van Heuven Goedhart, the General Assembly agreed to authorize the High Commissioner ‘to issue an appeal for funds’ in respect of emergency aid to refugees (GA Res 538B (VI) (1952)). However, only limited funds would prove forthcoming. Following the events in Hungary in 1956 and the consequent refugee influx in neighbouring countries, Austria requested the UNCHR to appeal to governments for emergency assistance. See Holborn, Refugees: A Problem of Our Time, n 1, 391–2. The General Assembly also requested the UNCHR to make ‘speedy and effective arrangements for emergency assistance to refugees from Hungary’ (GA Res 1006 (ES-II) (1956)). See also GA Res 1129 (XI) (1956). Subsequently, the General Assembly called on the UNHCR ‘to develop a comprehensive assessment of the needs, both material and financial, of the Hungarian refugees’ (GA Res 1039 (XI) (1956)). This was despite the temporal limitation in the Refugee Convention to persons outside their country of nationality due to events arising prior to 1 January 1951. See para 23.20. Also in the mid-1950s, following an influx of persons from China to Hong Kong, at the time a British colony, there was considerable debate as to whether such persons were ‘refugees’. The General Assembly appealed to member states and NGOs to provide assistance to alleviate the distress of Chinese refugees in Hong Kong, and authorized the High Commissioner to use his ‘good offices’ ‘to encourage arrangements for contributions’ (GA Res 1167 (XII) (1957)). On the episode, see Hambro, The Problem of Chinese Refugees in Hong Kong (1955). On the good offices function of the UNHCR, see Holborn, Refugees: A Problem of Our Time, n 1, ch 18.
Some years later, in ECOSOC Res 2011 (LXI) (1976), ECOSOC directed the UNHCR ‘to alleviate the suffering of all those of concern’ to the UNHCR, moving beyond protection and permanent solutions. Likewise, GA Res 1166 (XII) (1957) referred to the UNHCR’s providing ‘assistance’ to refugees within the mandate of the High Commissioner.
135 In particular, under the leadership of Sadako Ogata, there was a shift in emphasis away from legal protection and towards operations and assistance. See Hocké, n 35; Loescher, n 1, 249–51 and 324–6. Aleinikoff, n 48, 401, notes that ‘[o]ver the past 60 years, the provision of assistance to refugees and other persons of concern has come to dominate UNHCR’s programme planning and fund-raising efforts, and it is now firmly established as a major element of its mandate’.
137 See, eg, Executive Committee Conclusion No 61 (XLI) (1990), which notes the ‘close nexus between international protection, international solidarity, material assistance and the provision of solutions through voluntary repatriation, integration in countries of asylum, or resettlement, and calls upon the High Commissioner to continue his efforts to ensure that protection measures are fully integrated into assistance and durable solutions programmes’. See also GA Res 66/135 (2011), which reaffirms that ‘assistance and protection are mutually reinforcing and that inadequate material assistance and food shortages undermine protection’.
138 See Wilde, International Territorial Administration (2008), 62; Verdirame, The UN and Human Rights (2011), 270–2; Janmyr, Protecting Civilians in Refugee Camps (2013), 267–70. On the UNHCR’s presence in the field, see Zieck, n 46.
139 For example, writing in 2008, Wilde, n 138, 62, fn 54, notes of the Dadaab camps in Kenya: ‘UNHCR’s main implementing partner in the Dadaab camps was CARE Kenya, which was responsible for camp management, food-distribution, water and sanitation, education and community services. … For 11 years, until 2003, Médecins Sans Frontières Belgium … provided medical care, both immediate and, with immunization programmes, long-term … Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) … was responsible for managing firewood and the environment, and for training residents of the camps in conservation skills’. See further Janmyr, n 138, ch 7.
140 See Verdirame and Harrell-Bond, Rights in Exile: Janus-Faced Humanitarianism (2005); Farmer, ‘Refugee Responses, State-like Behaviour, and Accountability for Human Rights Violations: A Case Study of Sexual Violence in Guinea’s Refugee Camps’ (2006) 9 Yale Human Rights and Development Law Journal 44; Verdirame, n 138, 281–94. See further Pallis, ‘The Operation of UNHCR’s Accountability Mechanisms’ (2004–5) 37 NYU JILP 869.
141 Loescher, Betts and Milner, n 1, 14, have noted that funding through voluntary contributions constitutes ‘the most significant means through which states are able to control the scope of UNHCR’s work’.
142 Statute of the UNHCR, Art 20. This can be traced back to GA Res 319 (IV) (1949), which provided that, subject to the General Assembly deciding otherwise, ‘no expenditure other than administrative expenditures relating to the functioning of the High Commissioner’s Office should be borne on the budget of the United Nations, and that all other expenditures relating to the activities of the High Commissioner should be financed by voluntary contributions’. At the same time, according to Art 18 of the Statute, the Secretary-General is to ‘provide the High Commissioner with all necessary facilities within budgetary limitations’.
144 Whereas the UNHCR budget for 2015 was some $6.23 billion, which ultimately rose to £7.23 billion due to the emergence of a number of crises during the year, only $44.1 million came from the UN regular budget. See Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, UN Doc A/69/12/Add.1 (2014) para 13(c); UNHCR, Global Report 2015 (2016), 20, 25. A breakdown of the areas in which the funding is spent is contained in the annual reports of the UNHCR to the General Assembly. See, eg, Report of the United Nations High Commissioner for Refugees, UN Doc A/70/12 (2015), Table 2, at 23. The UNHCR splits its budgetary requirements into four pillars—the refugee programmes, the stateless programmes, reintegration projects, and internal displacement projects. In 2015, the budget needs for the refugee programme amounted to some $5.03 billion, the stateless programme $75.7 million, reintegration projects $242.2 million, and internally displaced persons $1.41 billion. Other budgetary items included the operational reserve and the new or additional activities mandate-related reserve. See UNHCR, Global Report 2015 (2016), 24. The original budget of the UNHCR was some $300,000.
145 The UNHCR issues an appeal for funds each December and then convenes a pledging conference. Special appeals are also issued in relation to particular unforeseen activities, eg, following an event that gives rise to refugee flows. This stands in contrast to the statutory provision, which provides that the High Commissioner may not ‘appeal to Governments for funds or make a general appeal, without the prior approval of the General Assembly’ (Statute of the UNHCR, Art 10). However, as early as 1952, the General Assembly authorized the UNHCR to appeal for funds for emergency aid (GA Res 538 (VI) B (1952)). This authorization was provided after considerable discussion and the reluctance of a number of states to permit it. See Holborn, Refugees: A Problem of Our Time, n 1, 136–9. In 1960, the General Assembly decided that an ad hoc Committee of the Assembly would be convened, ‘where pledges of voluntary contributions for the refugee programmes for the following year would be announced’ (GA Res 1556 (XV) (1960)). In 1961, the General Assembly decided that the ad hoc Committee would meet on an annual basis for the purpose of pledging voluntary contributions (GA Res 1729 (XVI) (1961)).
146 See the various UNHCR Global Reports, eg, UNHCR, Global Report 2015 (2016), 27. The principal donors are the US, the EU, Japan, Germany, Kuwait, Sweden, Norway, and Denmark. This reliance on a small group can lead to certain tensions. For example, it has been said that during the late 1970s and early 1980s, ‘virtually all of [UNHCR] funding came from Western governments who had a geopolitical interest in supporting UNHCR camps which housed anti-Communist “refugee warriors” ’ (Loescher, Betts, and Milner, n 1, 36). The budget deficit of the UNHCR, amongst other factors, also led to donor governments forcing High Commissioner Jean-Pierre Hocké to resign (Loescher, n 1, 262–4). Key donors also press the UNHCR to undertake particular tasks. See Helton, n 15, 280.
148 These included the Bill and Melinda Gates Foundation, Google.org and AC Milan, and various national associations for the UNHCR. See UNHCR, Global Report 2015 (2016), 43. This is not new. Shortly after the creation of the UNHCR, at a time in which it was finding it difficult to attract funding, the Ford Foundation provided funding of $2.9 million. See Statement by the High Commissioner, Gerrit Jan van Heuven Goedhart, at the Meeting of the Third Committee of the United Nations General Assembly, 13 October 1953, available on the UNHCR website.
149 For example, Microsoft and PriceWaterhouse Coopers supported certain technology programmes. Report of the United Nations High Commissioner for Refugees, UN Doc A/64/12 (2009), para 76. Lego provided children’s toys and Ikea Foundation provided bedding. See UNHCR, Global Report 2010 (2011), 95.
150 For example, in 2010, voluntary contributions were provided by ECOWAS, the Council of Europe Development Bank, and the African Development Bank, amongst others, as well as by IOM. See UNHCR, Global Report 2015 (2016), 36.
151 States and other entities that provide funding may earmark the projects for which the funds are to be utilized. In 2015, 85 per cent of funds were earmarked. See UNHCR, Global Report 2015 (2016), 36, which notes that some $130 million was not earmarked, with 63 per cent of funds ‘tightly earmarked’ for specific countries or activities, and 22 per cent ‘broadly earmarked’. Art 10 of the Statute of the UNHCR provides that the High Commissioner may reject offers that he does not consider appropriate or that cannot be used. However, this is unlikely to be engaged by earmarking, as the offers are not inappropriate but selective.