Part 3 Protection, 8 International Protection
From: The Refugee in International Law (3rd Edition)
Guy S. Goodwin-Gill, Jane McAdam
- Subject(s):
- Non-refoulement — Nationality of individuals — NGOs (Non-Governmental Organizations) — Genocide — Crimes against humanity
(p. 421) 8 International Protection
The lack or denial of protection is a principal feature of refugee character, and it is for international law, in turn, to substitute its own protection for that which the country of origin cannot or will not provide. Non-refoulement is the foundation-stone of international protection, and in this and the following two chapters the content of that protection is examined in more detail, with attention specifically to international institutions, treaties, solutions, and the incorporation of international standards in municipal law.
1. International institutions
The first intergovernmental arrangements on behalf of refugees were contemporaneous with the establishment of various institutions charged with their implementation.1 In 1921, Gustave Ador, President of the International Committee of the Red Cross, addressed the Council of the League of Nations on behalf of an estimated 800,000 Russians scattered throughout Europe, without protection or status.2 So it was that in June 1921 the Council decided to appoint a High Commissioner for Russian Refugees, naming Dr Fridtjof Nansen to the post some two months later.3 The tasks of the High Commissioner included Defining the legal status of refugees; organizing their repatriation or ‘allocation’ to potential resettlement countries and, together with private organizations, providing relief.4 (p. 422) In this period, the League also acted for many other groups; they included Armenians, whose exodus from Turkey to various neighbouring countries had begun in 1915, and began again in 1921;5 Assyrians and Assyro-Chaldeans; and a group of one hundred and fifty persons of Turkish origin who, under the terms of the Protocol of Lausanne of 24 July 1923, were expressly barred from returning to their country of origin.6 Also beginning in the 1920s came the flight from fascism, first from Italy, then from Spain, and finally from Germany and its conquered or incorporated territories in the 1930s.
A 1928 arrangement7 recommended that the services normally rendered to nationals abroad by consular authorities should be discharged on behalf of refugees by representatives of the High Commissioner. Unless within the exclusive competence of national authorities, such services were to include: certifying the identity and position of refugees; certifying their family position and civil status, so far as that was based on documents issued or action taken in the refugees’ country of origin; testifying to the regularity, validity, and conformity with the previous law of their country of origin of documents issued in that country; certifying the signature of refugees and copies and translations of documents drawn up in their own language; testifying before the authorities of the country to the good character and conduct of individual refugees, their previous record, professional qualifications, and university or academic standing; and recommending individual refugees to the competent authorities with a view to obtaining visas, residence permits, admission to schools, libraries, and so forth.8 In order to give legal effect to these recommendations two States, France and Belgium, concluded an agreement authorizing the High Commissioner’s representatives to issue the documents in question.9
References(p. 423) In the period 1923–9, certain ‘technical services’ principally relating to assistance, were entrusted to the International Labour Organization, leaving the High Commissioner responsible for the political and legal protection of refugees. With Nansen’s death in 1930, the Assembly of the League of Nations established the Nansen Office to undertake humanitarian activities on behalf of refugees, and entrusted protection to the Secretary-General. A succession of other bodies followed: first, the High Commissioner’s Office for Refugees Coming from Germany was established in 1933;10 then, in 1938, came the High Commissioner’s Office for all refugees, charged with providing political and legal protection, superintending the entry into force of the relevant conventions, co-ordinating humanitarian assistance, and assisting governments and private organizations in their efforts to promote emigration and permanent settlement.11 The same year, following the thirty-two nation Evian Conference convened on the initiative of the United States to deal with ‘the question of involuntary emigration’, the Intergovernmental Committee on Refugees (IGCR) was created.12 At this time of a continuing outflow from Germany and Austria, the answer was thought to lie in coordinating involuntary emigration with existing immigration laws and practices, in collaboration with the country of origin.
From October 1939, the IGCR was essentially non-functional, although it was substantially reorganized and its mandate extended following an Anglo-American meeting in Bermuda in April 1943.13 In November of that year, the Allies also set up the United Nations Relief and Rehabilitation Administration (UNRRA); as the name and time imply, its role was to provide relief to the millions displaced by the Second World War and, in particular, to assist those wishing to repatriate.14 References(p. 424) UNRRA was conceived as a temporary institution, and its only concern with refugees arose from its relief responsibilities. Notwithstanding some remarkable success in overseeing the return movements of the displaced,15 by June 1947 nearly 650,000 still remained without solutions, most of them east Europeans and many of them refugees from the events of the post-war. In 1946, however, the United Nations had recognized the fundamental principle that no refugees with valid objections to returning to their countries of origin should be compelled to do so.16 Following the recommendation of ECOSOC, it also created the International Refugee Organization (IRO)17 and defined those within its mandate.18 While there was general agreement on the necessity to assist the victims of nazi, fascist and similar regimes, many countries remained adamantly opposed to providing international protection to so-called political dissidents. These same countries argued that the number of ‘non-repatriables’ would be considerably reduced if hostile propaganda ceased in the camps, and if the activities of war criminals and the like were curbed. This opposition extended to a refusal to contribute to the financing of large-scale resettlement operations.19
The IRO operated until 28 February 1952,20 its functions defined in its Constitution to include: repatriation; identification; registration and classification; care and assistance; legal and political protection; and transport, resettlement, and re-establishment of persons of concern to the Organization.21 Throughout its life, the IRO and particularly its resettlement work, were sharply attacked in the United Nations, both directly and indirectly.22 Direct attacks concentrated on the IRO’s ‘complicity’ in resettlement activities designed to meet labour demands and to provide shelter for expatriate organizations hatching plots and threatening References(p. 425) world peace.23 The responses were generally muted, relying more on statements of principle—the freedom to return or not to return—and only rarely charging east European countries with direct responsibility for the exodus.24 IRO operations continued in a period of heightening east-west tension. It remained funded by only eighteen of the fifty-four governments then members of the United Nations, and it is hardly surprising, either that its policies should be caught up in the politics of the day, or that there may not have been some truth behind the ‘immigration bureau’ charge.
Many tens of thousands of refugees and displaced persons were resettled under IRO auspices.25 The self-interest of States was at work, and refugee resettlement policies also served broader political interests.26 And yet at the same time, there was a vast humanitarian problem then facing individual States and the international community. Refugee situations can and do lead to instability; if left unresolved, they may breed refugee discontent, leading to political tensions at the local, regional, or universal level. Solutions had to be found; given the relations then prevailing between east and west, given the west’s popular endorsement of human rights and freedom of choice, and given population pressures in much of Europe, third country resettlement was the single most attractive option available to those States committed to resolving the problem.
The IRO existed to deal with the aftermath of the Second World War and the immediate consequences of political change. Even during its lifetime, however, the General Assembly acknowledged the need for a successor organization, and in the days of the IRO’s demise, the major questions debated were definitional—just who should benefit from international action; and functional—what should be done for refugees, who should do it, and who should pay. Eastern European countries continued to voice their suspicions, but there was also a significant change in the policy of the United States, the major donor. The IRO had been expensive, and increasingly the US authorities came to rely on their own refugee schemes (such as the escapee programme), on bilateral and regional arrangements, and on the Intergovernmental Committee for European Migration, set up in 1951 outside the United Nations system.27 While these developments were yet to come, the General Assembly decided in 1949 to establish a High Commissioner’s Office for Refugees.28
(p. 426) 1.1 The Office of the United Nations High Commissioner for Refugees (UNHCR)29
At its 1950 session, the General Assembly formally adopted the Statute of UNHCR as an annexe to resolution 428(V),30 in which it also called upon governments to cooperate with the Office. The functions of UNHCR encompass ‘providing international protection’ and ‘seeking permanent solutions’ to the problem of refugees by way of voluntary repatriation or assimilation in new national communities.31 The Statute expressly provides that ‘the work of the High Commissioner shall be of an entirely non-political character; it shall be humanitarian and social and shall relate, as a rule, to groups and categories of refugees’.32 Of the two functions, the provision of international protection is of primary importance, for without protection, such as intervention to secure admission and non-refoulement of refugees, there can be no possibility of finding lasting solutions.33
Besides Defining refugees, the UNHCR Statute prescribes the relationship of the High Commissioner with the General Assembly and the Economic and Social Council (ECOSOC), makes provision for organization and finance, and identifies ways in which the High Commissioner is to provide for protection.34 These develop the functions engaged in by predecessor organizations and include: (1) promoting the conclusion of international conventions for the protection of refugees, supervising their application and proposing amendments thereto; (2) 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; and (3) promoting the admission of refugees.35
References(p. 427) Notwithstanding the statutory injunction that the work of the Office shall relate, as a rule, to groups and categories of refugees, a major part of UNHCR’s protection work has long been concerned with individual cases, as was that of its predecessor organizations. No State has objected to UNHCR taking up individual cases as such,36 although States may, and do, question whether an individual is indeed a refugee.37 Nevertheless, the individual dimension to the protection function is a natural corollary to the declared task of supervising the application of international conventions. Such instruments define refugees in essentially individualistic terms and provide rights on behalf of refugees which can only be understood in the sense of the particular. The acquiescence of States in the individual protection function of UNHCR, however, significantly delineates both the competence of the Office and the status of the individual refugee in international law.
Today, most States clearly want the United Nations to assume responsibilities for a broad category of persons obliged to flee their countries for a variety of reasons.38 The General Assembly has endorsed UNHCR activities for humanitarian reasons, but also essentially because the lack of protection creates a vacuum.39 (p. 428) This in turn may be due to the legal consequences of statelessness;40 or it may be a matter of fact, where an individual is unable or unwilling to avail himself or herself of the protection of the government of their country, either because of a well-founded fear of persecution, or because of some man-made disaster, such as violence resulting from a variety of sources.41
The underlying rationale for international protection is thus that humanitarian necessity which derives from valid reasons involving elements of coercion and compulsion. The refugee in flight from persecution and the refugee in flight from the violence of a ‘man-made disaster’ are alike the responsibility of the United Nations, even as the present system of duty and cooperation falls short of demanding durable solutions from sovereign States. General Assembly resolutions can extend the functional responsibilities of UNHCR, its subsidiary organ, but they do not thereby directly impose obligations on States.
1.1.1 Relation of UNHCR to the General Assembly and its standing in general international law
UNHCR was established by the General Assembly as a subsidiary organ under article 22 of the UN Charter,42 and the parent body has continued its role in expanding or approving extensions of the mandate of the Office.43 The relationship of the two organizations is laid down in the Statute, which declares that UNHCR acts, not at the direction of the UN Secretary-General, but ‘under the References(p. 429) authority of the General Assembly’,44 that it shall ‘follow policy directives given by [that body] or the Economic and Social Council’,45 and that it ‘shall engage in such additional activities, including repatriation and resettlement, as the General Assembly may determine’.46
The High Commissioner is further required to report annually to the General Assembly, through the Economic and Social Council, and the report is to be considered as a separate agenda item.47 Finally, the Statute calls upon the High Commissioner, particularly where Difficulties arise, to request the opinion of the advisory committee on refugees, if it is created.48 Such a committee was first established in 1951,49 and was replaced four years later by the UN Refugee Fund Executive Committee,50 whose functions included supervision of material assistance programmes financed by the fund. The General Assembly called for its replacement in turn by the Executive Committee of the High Commissioner’s Programme, which was set up by the Economic and Social Council in 1958.51 Originally comprising twenty-four States, it has been progressively enlarged to its present (2007) membership of seventy.52 The Committee’s original terms of reference included advising the High Commissioner, on request, in the exercise of the Office’s statutory functions; and advising on the appropriateness of providing international assistance through the Office in order to solve any specific refugee problems. In 1975, the Executive Committee set up a Sub-Committee of the Whole on International Protection,53 which regularly reviewed situations of concern, and whose conclusions, when adopted in Plenary, constituted some of the ‘soft law’ background to refugee protection, particularly between 1977 and (p. 430) 1994.54 At its 1995 session, the Executive Committee reorganized its meetings around one annual plenary session and a number of inter-sessional meetings of a new Standing Committee of the Whole, which replaced the Sub-Committees with a general competence over protection, programme and financial issues.55 Notwithstanding the apparently limited role anticipated by the Executive Committee’s initial terms of reference, it has come to exercise considerably more influence on the day-to-day management of UNHCR, as well as in the development of policy.56
Each of the above elements involves the participation of States, at varying levels, in the principal international institutions concerned with the protection of refugees. The practice of such organizations is therefore relevant in assessing both the standing of UNHCR and the legal status of the rules benefitting refugees in general international law. UNHCR is not only a forum in which the views of States may be represented; it is also, as a subject of international law, an actor in the relevant field whose actions count in the process of law formation.57 specific authority to involve itself in the protection of refugees has been accorded to the Office by States parties to the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees. Article 35 of the Convention, for example, provides: ‘The contracting States undertake to cooperate with the Office of the United Nations High Commissioner for Refugees … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention’.58 The 1969 OAU Convention requires member States to cooperate similarly, while declaring itself to be the ‘effective regional complement in Africa’ of the 1951 Convention.59 UNHCR, however, is not itself a party to those instruments, and its standing must be located in more general principles and in relevant practice, including its formal participation in the drafting and implementation of comprehensive approaches to refugee problems, such as CIREFCA and the CPA.
Clearly, by derivation and intention, UNHCR does enjoy international personality. As a subsidiary organ of the General Assembly, its ‘personality’ (its capacity to References(p. 431) possess international rights and duties) can be traced to the United Nations at large.60 Moreover, its Statute shows that the Office was intended by the General Assembly to act on the international plane.61 Its standing in regard to protection has been further reinforced by successive General Assembly resolutions urging all States to support the High Commissioner’s activities, for example, by granting asylum, observing the principle of non-refoulement and acceding to the relevant international treaties. While it is trite knowledge that General Assembly resolutions are not legally binding, ‘it is another thing’, as Judge Lauterpacht noted in the Voting Procedure case, ‘to give currency to the view that they have no force at all, whether legal or other, and that therefore they cannot be regarded as forming in any sense part of a legal system of supervision’.62 On this occasion, the ‘legal system of supervision’ was the mandate in respect of South West Africa. In his separate opinion, Judge Lauterpacht noted that, while the mandatory had the right not to accept a recommendation of the supervising body, it was nevertheless bound to give it due consideration in good faith, which in turn entailed giving reasons for non-acceptance.
Admittedly, General Assembly resolutions with regard to refugees and to UNHCR do not have the same degree of particularity as a recommendation relating to the administration of a mandate. Nevertheless, against the background of the UN Charter and general international law, UNHCR, with its principal function of providing ‘international protection’ to refugees, can be seen to occupy the central role in an analogous legal system of supervision. Indeed, though discretions continue to favour States in certain of their dealings with refugees, the peremptory character of the principle of non-refoulement puts it in a higher class than the ‘intangible and almost nominal’ obligation to consider in good faith a recommendation of a supervisory body, such as Judge Lauterpacht discerned in the Voting Procedure case.63 The entitlement of UNHCR to exercise protection on the basis of a universal jurisdiction receives additional support from the decision of the International Court of Justice in the Reparations case. There, the Court read into the rights and duties of the United Nations Organization, as a ‘necessary intendment’, the capacity to exercise a measure of functional protection on behalf of its agents.64 UNHCR, by comparison, is expressly ascribed the function of providing international protection to refugees; State practice reflects ‘recognition or References(p. 432) acquiescence in the assumption of such jurisdiction’65 universally, and without regard to any requirement of treaty Ratification. The ‘effective discharge’66 of this function evidently requires capacity to assert claims on behalf of individuals and groups falling within the competence of the Office.
Given States’ obligations with regard to refugees, to whom are they owed? The individual is still not considered to be a subject of international law, capable of enforcing his or her rights on the international plane,67 while the problems faced by refugees (such as interdiction on the high seas, or violations of human rights), are not such as would prompt exercise of the right of diplomatic protection on the part of the State of nationality. In the case of States parties to the 1951 Convention and the 1967 Protocol, the existence of obligations inter se is established, and this has certain theoretical advantages for the refugee with a willing protecting State behind him or her. Refugees recognized under the Convention/Protocol are entitled to exercise certain rights in every Contracting State, and each Party owes the duty of implementation to every other State party. Article 16, for example, provides that ‘A refugee shall have free access to the courts of law on the territory of all Contracting States’, and this benefit applies to all refugees and to all Contracting States, irrespective of the place of residence of the refugees. A failure to allow a recognized refugee to access the courts represents therefore a very simple example of breach of obligation.
The legal effects of participating in a multilateral treaty can be set out in a simple and straightforward manner. First, each State party undertakes an obligation towards every other State party to implement the treaty in good faith.68 Secondly, the responsibility of each State party is engaged at the bilateral level, in that each State party has undertaken toward every other State party, not only a general obligation to implement the treaty in good faith, but also a series of specific obligations in the form of the particular articles of the treaty. In the present case, therefore, the State is not only obliged to ensure that recognized refugees generally have access to its courts, but it is also specifically obligated towards such other State party with regard to the refugees recognized by the latter, and who are within its territory or jurisdiction.
References(p. 433) Thus, the State whose recognized refugees are denied Convention rights in another State party is entitled to invoke that State’s responsibility. The recognizing State has incurred injury, first, at the direct inter-State level, through the violation of the article in question;69 it does not need to rely on obligations erga omnes parties, for here an action or omission attributable to the State under international law clearly constitutes a breach of an international obligation of that State.70 Moreover, the breach of obligation in the present case would fall within the categories described in article 42 of the International Law Commission’s Articles on State responsibility, for the obligation is both owed to the State individually, and, so far as it is also owed to all the States party to the Convention, the obligation breached ‘specifically affects’ that State by way of injury to one of ‘its’ recognized refugees.71 The ILC has further observed that:
[A]lthough a multilateral treaty will characteristically establish a framework of rules applicable to all the States parties, in certain cases its performance in a given situation involves a relationship of a bilateral character between the two parties. Multilateral treaties of this kind have often been referred to as giving rise to ‘bundles of bilateral relations’.72
Arguably, the obligations laid down in the 1951 Convention are also of this nature. A violation of its terms may affect all States parties, but not necessarily in the same way. The State whose subjective right has been violated is the injured State competent to claim; in the present context, it is the State which, through the denial of access to the courts to its ‘own’ refugees, is directly or individually affected, rather than the other States parties to the Convention/Protocol, which are not directly or not individually affected, but nonetheless potentially competent to claim if able to bring themselves within the terms of article 48.
Although theoretically of benefit to the refugee recognized in one State and denied Convention rights in another, the practical difficulty of persuading the (p. 434) former to ‘exercise protection’ remains to be overcome. At the national level also, the claims of recognized refugees (like those of citizens) may face both procedural and substantive obstacles in the face of judicial caution in confronting executive discretion, particularly on issues touching foreign affairs.73 Both the Convention and the Protocol expressly provide for the settlement of disputes relating to their interpretation or application, and for reference to the International Court of Justice at the request of any of the parties to the dispute, should other means of settlement fail.74 No litigation has resulted, however, despite the precedents that would appear to support States in the legal defence of matters other than those which affect directly their material interests.75
Under article 24 of the European Convention on Human Rights, by contrast, any contracting State may refer to the European Commission an alleged breach of the Convention by another party. The instrument itself thus provides for a ‘European public order’, a regime in which all States parties have a sufficient interest in the observance of the European Convention’s provisions to allow for the assertion of claims. While there are similarities in the objectives of the European Convention and the refugee conventions—both call for certain standards of treatment to be accorded to certain groups of persons—the refugee conventions lack effective investigation, adjudication, and enforcement procedures; they can hardly be considered to offer the same opportunity for judicial or quasi-judicial solutions. Nonetheless, in view of the importance of the rights involved, all States have an interest in their protection;76 and UNHCR, by express agreement of some States and by the acquiescence of others, is the qualified representative of the ‘international public order’ in such matters. A cogent theory of responsibility remains to be developed to cover this situation, however, and the legal consequences that may flow from a breach of the international obligations in question are still unclear.
International claims can take the form of protest, a call for an inquiry, negotiation, or a request for submission to arbitration or to the International Court of Justice. Both the nature of breaches of obligation affecting refugees and the nature of the protecting organization rule out certain types of claims, such as arbitration,77 References(p. 435) while strictly legal considerations might exclude, for example, recourse to the International Court of Justice.78 The possibility of interim measures ordered by the Court under article 41 of the Statute should not be discounted, however.79 In United States Diplomatic and Consular Staff in Tehran (Request for the Indication of Provisional Measures),80 the Court noted that the object of its power to indicate such measures is to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings. The rights of the United States to which the Court referred included the rights of its nationals to life, liberty, protection, and security. It held that continuation of the situation exposed those individuals to privation, hardship, anguish, and even danger to health and life and thus to a serious possibility of irreparable harm. The Government of the Islamic Republic of Iran was ordered, among others, to ensure the immediate release of those held.81 In its judgment on the merits, the Court noted that, ‘Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.’82
The potential for further development of a limited protection competence is also implicit in the Court’s rulings on the requests by Bosnia and Herzegovina for interim measures to prevent genocide, and in its finding that a human rights instrument, the 1948 Genocide Convention, was a sufficient basis for the exercise of jurisdiction, so far as the subject-matter of the dispute related to the ‘interpretation, application or fulfilment’ of that treaty.83 As Merrills points out, however, the function of interim measures is to protect the rights of both sides pending a decision on the merits, and many of those for which the applicant sought protection were outside the scope of the Convention.84
In most other cases, the simple existence of obligations owed at large may provide sufficient justification, not just for ‘expressions of international concern’,85 but also for formal protest on the part of UNHCR. The Significance of this References(p. 436) development for the individual’s standing in general international law should not be underestimated.
1.2 The United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA)
On 29 November 1947, the United Nations General Assembly voted in favour of a plan to partition Palestine into two separate States, one Arab and one Jewish;86 fighting between the two communities commenced almost at once. The British mandate terminated on 14 May 1948, and the next day the Jewish community proclaimed the State of Israel. The first Arab-Israel war followed, with many thousands of Palestinian Arabs fleeing into neighbouring countries. When a formal armistice was finally declared just over a year later, the emergent Israeli State had control over most of the territory of the former Mandate Palestine with the exception of the areas known as the West Bank and the Gaza Strip, which were respectively under the control of Jordan and Egypt. An estimated 750,000 Palestinians fled and/or were forced to leave their homes or were expelled and were living in refugee camps in the Gaza Strip, the West Bank, Jordan, Lebanon, and Syria.87
On 11 December 1948, the General Assembly established a Conciliation Commission for Palestine (UNCCP), charged with taking steps to achieve a final settlement.88 A year later, in December 1949, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) was set up as a subsidiary organ of the General Assembly, to assist those who had left Palestine as a result of the conflict;89 that assistance is mainly in the fields of relief, health and education. As already described above in Chapter 4 with regard to the interpretation of article 1D of the Convention, none of the General Assembly resolutions providing for relief to Palestine refugees, or establishing agencies for the provision of such relief, defines those who are to benefit. UNRWA has therefore developed and modified its working definitions over the years, which have been communicated to the General Assembly and never opposed. So far as registration with UNRWA determined the provision of relief, funding constraints have led to limitations on eligibility and to the exclusion from UNRWA rolls of numbers of Palestinians who became refugees as a result of the 1948 conflict. Rules issued in 1993 defined a ‘Palestine refugee’ for UNRWA purposes as ‘any person whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948 and who lost both home and means of livelihood as a result of the 1948 conflict’. (p. 437) Provision is also made for registration entitlement to descend, though through the male line only, and for a Palestinian not presently receiving relief to apply for it.90
This definition has been extended to the children of such refugees, and following the 1967 War, the General Assembly approved the provision of humanitarian assistance by UNRWA, ‘on an emergency basis and as a temporary measure, to other persons in the area who are at present displaced and are in serious need of immediate assistance as a result of the recent hostilities’. Notwithstanding the ‘temporary’ and ‘emergency’ aspects of this measure, it has been endorsed in later General Assembly resolutions and extended further to those displaced by ‘subsequent hostilities’.91 UNRWA assistance has always been limited as to locality, being restricted to Lebanon, Syria, Jordan, the Gaza Strip and, after the 1967 displacements, Egypt; and limited also as to refugees registered and actually residing in those host countries. Registration, which initially facilitated ration distribution, acquired greater Significance in the countries of refuge, where it was increasingly equated with acceptance as a refugee and prima facie entitlement to remain.92
… good Offices with the local and community authorities in Palestine to (i) Arrange for the operation of common services necessary to the safety and well-being of the population of Palestine; … (iii) Promote a peaceful adjustment of the future situation of Palestine.95
References(p. 438) The UN Conciliation Commission was instructed to ‘facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation’, and by resolution 394(V) of 14 December 1950, to ‘continue consultations with the parties concerned regarding measures for the protection of the rights, property and interests of the refugees’. But already the effectiveness of UNCCP, contingent upon the cooperation and political will of the States concerned, was in doubt; the summary of debate in the General Assembly is brief but eloquent testimony to the fundamental differences between the parties, upon whom depended a solution to the refugee problem. To one side, the objective of a peaceful settlement required direct negotiations; to the other, direct negotiations were contingent on full recognition of the rights of the Arabs to Palestine and to their own homes.96 With the passing of the years, the General Assembly’s repeated requests to the Conciliation Commission to continue its efforts became increasingly formal, almost ritualistic. The prospects for repatriation, resettlement, rehabilitation, and compensation waned, UNCCP became irrelevant to the protection needs of Palestinian refugees, and UN institutional mechanisms were unable to bridge the gap.
UNRWA’s role continued as the provider of international assistance to Palestinian refugees, save that with the beginnings of the intifada movement in 1989, it came in practice also to exercise a significant, if limited, protection role on behalf of Palestinians against the occupying forces.97 The perception of the Palestinian refugee problem as ‘temporary’, however, accounts in part for the fact that the nationality status of many individual Palestinians remains unresolved.98
1.3 The United Nations Office for the Coordination of Humanitarian Affairs (OCHA)
1.3.1 Strengthening coordination
Following the 1986 Report of the Group of Government Experts, some initial steps were taken to improve the UN’s capacity to respond to forcible displacement, in particular, by the establishment of the Office for Research and Collection of Information (ORCI) in an attempt to provide the UN system with some form (p. 439) of early warning of impending mass movements.99 Dissatisfaction with the effectiveness of these first measures led to the proposal for the designation by the United Nations Secretary-General of ‘a high level official … as emergency relief co-ordinator’.
On 19 December 1991, the General Assembly adopted resolution 46/182 on strengthening the coordination of United Nations humanitarian emergency assistance.100 Annexed to that resolution was a set of guidelines, principles and proposals, which included the standards of humanity, neutrality, and impartiality as the essential basis for the provision of humanitarian assistance;101 but also respect for ‘the sovereignty, territorial integrity and national unity of States’, and recognition of the responsibility of each State, ‘first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory’.102 States with populations in need of humanitarian assistance are called upon to facilitate the work of appropriate intergovernmental and non-governmental organizations, while neighbouring States are urged to participate closely with affected countries. The nexus between disaster prevention and preparedness, and economic growth and sustainable development, is also acknowledged.103
The senior position of Emergency Relief Coordinator (ERC), created by resolution 46/182, brought together the functions previously carried out by various representatives of the Secretary-General for major and complex emergencies, and the responsibilities for natural disasters which had been entrusted to the UN Disaster Relief Coordinator (UNDRO).104 In 1998 the Department of Humanitarian Affairs was reorganized into the Office for the Coordination of Humanitarian Affairs (OCHA), with an expanded mandate over the coordination of the (p. 440) UN’s humanitarian response programmes. Coordination is promoted through the Inter-Agency Standing Committee, chaired by the ERC, and the participants include UN agencies, the Red Cross Movement and NGOs.105
The role of OCHA and the Emergency Relief Coordinator is, in principle, wide enough to allow the promotion of significantly higher levels of inter-State and inter-organization cooperation than have been seen so far.106 The Coordinator is responsible not only for processing requests from States for emergency assistance, but also overseeing all emergencies through ‘the systematic pooling and analysis of early-warning information’.107 While expected to organize needs assessment missions ‘in consultation with the Government of the affected country’, the Coordinator is also authorized to facilitate the provision of emergency assistance ‘by obtaining the consent of all the parties’,108 for example, in a situation of internal conflict, or where no effective governmental authority exists. In addition, the Coordinator acts as a central focal point on UN emergency relief operations,109 and is expected to work closely not only with agencies in the UN system, but also with the ICRC, the International Federation of Red Cross and Red Crescent Societies, IOM, and ‘relevant non-governmental organizations’.
During the 1990s, however, inter-agency coordination was also pursued through other mechanisms, in particular, the lead agency model, though with mixed results.110 A new approach, ‘clusters’, was introduced in 2005, following the Secretary-General’s report on strengthening the co-ordination of the UN’s emergency humanitarian assistance.111 This identified ‘significant capacity gaps’ in, among others, shelter and camp management and protection. It recognized that the protection of civilians is primarily the responsibility of States, but also that ‘the humanitarian system must work to fill protection gaps … ’,112 and that ‘Partnerships within the system may be necessary to overcome those gaps in assistance—such as protection and camp management in situations involving internally displaced persons—that do not enjoy leadership from any one agency.’113 (p. 441) It went on to recommend that humanitarian response capacity be strengthened by broadening the capacity base, making more efficient use of available resources, strengthening financial mechanisms, and preserving the ‘humanitarian space’ in integrated missions.114
A ‘humanitarian response review’ commissioned by the UN Emergency Relief Coordinator was published two months later, in August 2005.115 It looked at complex (man-made) emergencies and natural disasters, at preparedness and response capacities, and at protection in relation to the latter. It found ‘a conspicuous lack of recognition of a generally accepted definition of the meaning and requirements of protection’.116 The Review took a broad view of protection, which it saw as covering, ‘a wide range of activities, including physical presence, bilateral negotiations, multilateral diplomacy, training, education, data collection, dissemination, and advocacy and gaining access to victims … ’. The concept of protection generally was only vaguely understood, however, and capacity to respond here was severely lacking, notwithstanding the fact that protection was ‘a cross-cutting issue in all response sectors’, requiring special and urgent attention.117
Although a number of coordination elements were in place, the Review noted the feeling that the time for a more inclusive mechanism had arrived. The ‘lead agency’ approach applied by UNHCR in the 1990s had not gained much support,118 but might do so now if there were ‘appropriate and transparent terms of reference, including strong obligations for consultation and accountability (including financial accountability) towards partner organizations’.119
1.3.2 The complementary role of UN agencies
In dealing with the crises of forcible displacement, many United Nations agencies become involved. For example, the original mandate of UNICEF, the United (p. 442) Nations Children’s Fund established in 1946, was to provide assistance to children in countries which were the victims of aggression; now it provides both emergency and long-term assistance to mothers and children in need throughout the world. UNICEF’s work with children frequently extends into refugee situations, providing assistance to unaccompanied children, for example, or establishing safe water supplies and therapeutic feeding.120
The FAO (Food and Agriculture Organization) also has long been involved in disaster assistance, and the UN’s capacity to respond was strengthened in the 1960s with the creation of World Food Programme (WFP),121 responsible for disposing of surplus food and channelling aid to meet food needs and emergencies inherent in chronic malnutrition.122 WFP has its own staff in many countries, and the UNDP (United Nations Development Programme) Resident Representative also acts on its behalf.
Article 2(d) of the Constitution of WHO (World Health Organization) empowers it to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments. WHO is strongly represented throughout the world, with Programme Coordinators or National Programme Coordinators working in almost every country. Obviously, mass displacements across borders can contribute to the incidence and spread of disease, particularly where large numbers are crowded into makeshift camps with poor sanitation. In emergencies, WHO can provide advice and the services of specialists, as well as urgently needed medicaments from its Geneva and regional stocks.123
1.4 Other International and Intergovernmental Organizations and Agencies
1.4.1 International Organization for Migration (IOM)
Founded outside the United Nations as the Intergovernmental Committee for European Migration in 1951, the International Organization for Migration now brings together some one hundred and eighteen States. It is premised on the idea of freedom of movement, and the preamble of the revised Constitution, adopted in 1989, recognizes that migration assistance at an international level is often required ‘to ensure the orderly flow of migration movements throughout the world and to facilitate … settlement and … integration’.124
References(p. 443) In the organization’s first years of operation, it focused on displaced persons and refugees in, and orderly migration from, Europe. Since them, IOM’s objectives and functions have become world-wide and include orderly and planned migration for employment purposes; the movement of qualified human resources, including family members; the organized transfer of refugees, displaced persons, and other persons compelled to leave their country of origin; technical assistance and advisory services on migration policies, legislation, administration, and programmes; and the provision of a forum in which States and organizations concerned can exchange views and experiences, and promote cooperation and coordination on migration issues.125 IOM is also involved in migration information, both in its own right and in cooperation with UNHCR.
IOM’s working concept of displaced persons includes refugees within the sense of the OAU Convention or the Cartagena Declaration, as well as those in flight from man-made disasters. It also assists asylum seekers in various countries, who have either been accepted under the immigration programmes of third States, or have elected to return home voluntarily. In 1972, it helped many stateless persons and former citizens of Uganda, then facing expulsion. In September 1990, in a United Nations inter-agency context, IOM assumed responsibility for the repatriation of third country nationals displaced or expelled in the aftermath of the Iraqi invasion of Kuwait. In September 1991, working with UNHCR and within the context of the Comprehensive Plan of Action for Indo-Chinese refugees, IOM signed a memorandum of understanding with the Socialist Republic of Vietnam, with respect to the return of Vietnamese citizens from countries of refuge in South East Asia. In Europe, IOM operates programmes of limited assistance to asylum seekers whose claims have been definitively rejected, or who have withdrawn their applications. The focus is on pre-departure assistance, re-installation and, occasionally, also on counselling and re-insertion in the labour market.126
Lately, its range of activities have included evacuation from Lebanon, repatriation to Timor-Leste, involvement in emergency relief and rehabilitation for victims of disasters, assistance to internally displaced persons in Darfur and, more controversially, administration of off-shore processing centres in Nauru and Papua New Guinea on behalf of Australia and as part of the latter’s ‘Pacific strategy’.
(p. 444) 1.4.2 International Committee of the Red Cross (ICRC)
In many respects, the International Committee of the Red Cross (ICRC) has comparable protection responsibilities to UNHCR, but under the system consolidated by the 1949 Geneva Conventions and the 1977 Additional Protocols. Article 8, common to the first three Geneva Conventions, and article 9 of the Fourth Convention, each provide for their respective provisions to ‘be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict’. Each Convention likewise recognises the ‘humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may … undertake for the protection of … ’ persons within their scope, and for their relief.127 In addition, the Conventions provide for the appointment of substitutes for the Protecting Powers, such as ‘an organization which offers all guarantees of impartiality and efficacy’.128
Humanitarian objectives and the role of the ICRC are stressed throughout each of the four Geneva Conventions, in common article 3, and in their respective provisions on protected persons and the meaning of protection.129 In addition to its activities under the Conventions, the ICRC is recognized as retaining its right of initiative,130 the freedom to engage in ‘toute initiative humanitaire,… toute action que les conventions n’auraient pas prévues mais qui serait nécessaire pour la protection des victimes’.131
1.4.3 Regional organizations
The protection of refugees may also be promoted, directly and indirectly, by regional organizations, including, for example, the African Union (formerly the Organization of African Unity),132 the Organization of American States, and the Council of Europe. These have generated, among others, instruments such as the 1969 AU/OAU Convention on the specific Aspects of Refugee Problems in Africa,133 the 1969 American Convention on Human Rights, the 1950 European References(p. 445) Convention on Human Rights, the 1959 European Agreement on the Abolition of Visas for Refugees, the 1967 European Agreement on Consular Functions, together with the Protocol concerning the Protection of Refugees, and the 1980 European Agreement on Transfer of Responsibility for Refugees. As noted throughout this work, since the adoption of the Treaty of Amsterdam in 1997, the European Union has also pursued the goal of harmonizing asylum practice among the Member States.
The necessity for inter-agency and inter-State cooperation in migration and refugee continues to be a priority in different forums, such as the Organization (formerly the Conference) on Security and Co-operation in Europe.134 Although the OSCE process may fall short of the high normative character of an international treaty, cooperation has been a central element in each meeting, the focus of which is increasingly detailed.135 At the CSCE Vienna Meeting in 1986–87, participating States covered a range of relevant issues, among them the freedom to leave any country, including one’s own, and to return there, and the entitlement of refugees to repatriate.136
The final document of the CSCE Copenhagen Conference on the Human Dimension in June 1990 also endorsed basic human rights, including freedom of movement and a comprehensive right to effective remedies.137 Even as they stressed the desirability of freer movement, participating States also declared that ‘they will consult and, where appropriate, co-operate in dealing with problems that might emerge as a result of the increased movement of persons’.138 In November 1990, CSCE States adopted the Charter of Paris for a New Europe, with guidelines for strengthening democratic institutions, fostering ‘the rich contribution of national minorities’, combatting all forms of ethnic hatred and discrimination, ‘as well as persecution on religious and ideological grounds’.139 Notwithstanding the formal, non-obligatory nature of much of the OSCE process, References(p. 446) the repeated endorsement of basic principles by participating States is important evidence of a consolidating norm of cooperation, sufficiently broad to include the relations of States between themselves and practical inter-agency cooperation.
1.4.4 Non-governmental organizations (NGOs)
Protection concerns reveal a commonality of interest; effective protection demands a purposeful degree of cooperation, by no means limited to States or international organizations. For example, in 1980, the Economic and Social Council recognized the ‘essential role played by inter-governmental organizations, the International Committee of the Red Cross and other non-governmental organizations’ in meeting humanitarian needs in emergency situations.140 Many hundreds of national and international NGOs are involved in assisting and protecting refugees and asylum seekers around the world. Among the widely known are Médecins sans Frontières, which specializes in bringing medical care and health services to refugees in emergency camps and settlements; the US Committee for Refugees, which regularly carries out field visits and publishes situational and issues papers focusing on areas of concern; the European Council on Refugees and Exiles, a forum established in 1973 for co-operation which now brings together more than seventy western European NGOs concerned with refugees and the right of asylum; the various Refugee Councils in the Netherlands, the United Kingdom and other European countries, which provide legal or other counselling, or seek to influence national policy on refugees and asylum seekers; as well as human rights organizations whose reporting, monitoring and lobbying activities include refugees and the persecuted as a natural extension to their mandate.
For example, there is a clear complementarity between protection of refugees and Amnesty International’s statutory concern with ‘prisoners of conscience’, that is, men and women ‘imprisoned, detained or otherwise physically restricted by reason of their political, religious or other conscientiously held beliefs or by reason of their ethnic origin, sex, colour or language, provided that they have not used or advocated violence’.141
2. The protection of refugees in international law
Day-to-day protection activities are necessarily dictated by the needs of refugees and asylum seekers, but a summary reading of both the UNHCR Statute and the References(p. 447) 1951 Convention gives a general picture. There are, first, both direct and indirect aspects to the protection function, with the latter comprising UNHCR’s promotion activities already mentioned. Direct protection activities, including intervention on behalf of individuals or groups, involve protection of the refugee’s basic human rights, for example, non-discrimination, liberty, and security of the person.142 UNHCR is also concerned specifically with the following: (1) the prevention of the return of refugees to a country or territory in which their life or liberty may be endangered;143 (2) access to a procedure for the determination of refugee status; (3) the grant of asylum; (4) the prevention of expulsion; (5) release from detention; (6) the issue of identity and travel documents; (7) the facilitation of voluntary repatriation; (8) the facilitation of family reunion; (9) the assurance of access to educational institutions; (10) the assurance of the right to work and the benefit of other economic and social rights; (11) treatment generally in accordance with international standards, not excluding access to and by UNHCR, the provision of physical and medical assistance, and personal security; and (12) the facilitation of naturalization. Of these, the first four, together with the general function, are traditionally considered to be of prime importance, with the principle of non-refoulement standing as the essential starting-point in the search for permanent solutions. However, the measures to which refugees have been subject, and the conditions under which they must frequently live, have given added weight to claims for personal security, family reunion, assistance, and international efforts to achieve solutions.
As a matter of international law, the precise standard of treatment to be accorded to refugees will vary, depending on whether the State in which they find themselves has ratified the Convention and Protocol or any other relevant treaty. It may further depend on whether the refugee falls within the narrow or broad sense of the term, is lawfully or unlawfully in the territory of the State, or has been formally recognized as a refugee.
(p. 448) 2.1 General International Law
With regard to basic human rights, the lawfulness or otherwise of presence is as irrelevant as the distinction between national and alien,144 while certain provisions of the 1966 Covenants on human rights are indicative of standards going beyond a purely treaty-based regime. Article 2(2) ICCPR66, for example, obliges the State to respect and to ensure the rights declared to ‘all individuals within its territory and subject to its jurisdiction’. The same article elaborates a principle of nondiscrimination in broad terms, including national or social origin, birth or other status, within the list of prohibited grounds of distinction. Article 4(1), it is true, permits derogation in certain circumstances,145 and contains a narrower statement of the principle of non-discrimination that would allow States to distinguish between nationals and aliens. Nevertheless, any measures in derogation must be consistent with States’ other obligations under international law,146 and no derogation is allowed from those provisions which guarantee the right to life, or which forbid torture or inhuman treatment, slavery, servitude, or conviction or punishment under retroactive laws. The right to recognition as a person before the law and the right to freedom of conscience, thought, and religion are also declared in absolute terms.147
The Covenant has been widely ratified,148 while certain rights and standards also possess a positive foundation in general international law. In one oft quoted dictum, the International Court of Justice observed that ‘the principles and rules concerning the basic human rights of the human person, including protection from slavery and racial discrimination’,149 figure within the class of obligations owed by States erga omnes, that is to the international community of States as a whole. Although this concept is not without its Difficulties, the rights in question frequently appear in conventions among those from which no derogation is permitted, even in exceptional circumstances. Other rights of a similar fundamental character ought likewise to benefit everyone, and they would include the right to life; the right to be protected against torture or cruel or inhuman treatment or punishment; the right not to be subject to retroactive criminal penalties and the References(p. 449) right to recognition as a person before the law.150 Such rights clearly allow for no distinction between national and alien, whether the latter be a migrant, visitor, refugee, or asylum seeker, and whether lawfully or unlawfully in the State.151 The obligations of respect and protection are incumbent on States, irrespective of ratification of treaties, and refugees ought in principle to benefit, whether admitted on a temporary, Indefinite, or a permanent basis. In practice, however, this objective may remain elusive, particularly where the State of refuge is unable or unwilling to take the necessary measures. Refugees have thus fallen victim to external, armed aggression; to attacks by pirates resulting in murder, rape, abduction, and robbery; to abandonment when in distress at sea; to threats to life and security by para-military ‘death squads’; to forced conscription, even as children; to arbitrary detention and torture; and to rape and other sexual violence.152 The exercise of protection on such occasions is a difficult and delicate task, whether attempted by UNHCR or by concerned States, and the problem is further exacerbated where the injury takes place in an area formally beyond the jurisdiction of any State. While international solidarity may manifest itself in calls for action, practical results can be far harder to obtain.
Once refugees have secured admission, however, the goal of attaining a lasting solution to their plight would seem to entail certain further standards of treatment geared to that objective. In 1981, a Group of Experts considered the implications of the concept of temporary refuge, and proposed a list of some sixteen ‘basic human standards’ which, in its view, should govern the treatment of those temporarily admitted; these were duly endorsed by the Executive Committee and the General Assembly later that year.153 The objective, the initiative for which drew especially on generally negative practices in South East Asia, was rather the promotion of certain practically attainable standards, than the formulation of rules. The Executive Committee thus reiterated the need to observe fundamental rights, References(p. 450) including the principle of non-discrimination. It also recommended that asylum seekers be located by reference to their safety and well-being, as well as the security of the State of refuge;154 that they be provided with the basic necessities of life; that the principle of family unity be respected and that assistance with tracing of relatives be given; that minors and unaccompanied children be adequately protected; that the sending and receiving of mail, and receipt of material assistance from friends be allowed; that, where possible, appropriate arrangements be made for the registration of births, deaths, and marriages; that asylum seekers be permitted to transfer to the country in which a lasting solution is found, any assets brought into the country of temporary refuge; and that all necessary facilities be granted to enable the attainment of a satisfactory durable solution, including voluntary repatriation.
These recommendations are not of a normative character, although a rules base can certainly be found for many of them among basic human rights principles.155 They were formulated primarily with a view to reaching solutions which, in the case of refugees from Indo-China, meant first asylum followed by third country resettlement. Nevertheless, they are regularly invoked as a statement of the minimum standards applicable, particularly in the first phases of a refugee movement.156
2.2 Treaties and Municipal Law
Basic human rights derive their force from customary international law, and indicate the content of the general obligations which control and structure the treatment by States of nationals and aliens. For States which have ratified treaties specifically benefitting refugees, the particular standards required ought to be easier to determine. This, however, raises the problem of the obligation, if any, requiring ratifying States to incorporate or otherwise implement the provisions of the treaties in question in their municipal law. The 1951 Convention contains no provision requiring legislative incorporation or any other formal implementing step; indeed, article 36, which obliges States to provide information on national legislation, refers only to such laws and regulations as States ‘may’ adopt to ensure application of the Convention. Similarly, nothing is said with regard to the establishment of procedures for the determination of refugee status, or otherwise for ascertaining and identifying those who are to benefit from the substantive provisions of the Convention.
Although it offers little assistance in the solution of specific problems, the general duty of a party to a treaty to ensure that its domestic law is in conformity with References(p. 451) its international obligations is beyond contradiction.157 The governing principles, however, do not include an obligation as such to incorporate the provisions of treaties into domestic law.158 The International Law Commission’s final articles on State responsibility abandon the distinction previously drawn between obligations of conduct, obligations of result, and obligations to prevent a particular occurrence. Many commentators have observed that, while these distinctions may serve a useful analytical purpose and in determining when a breach has occurred (provided always that they are used correctly … ), they do not have either specific or direct consequences for responsibility.159 Dupuy and others pointed out that in the typology originally developed by the former Rapporteur on State responsibility, Roberto Ago, the conduct/result distinction was back to front; in civil law, an obligation of conduct is ‘une obligation de s’efforcer’, that is, to endeavour or to strive to realize a certain goal or to prevent a certain occurrence.160 An obligation of result, by contrast, is precisely that—an obligation, to borrow Crawford’s words, which involves,
in some measure a guarantee of the outcome, whereas obligations of conduct are in the nature of best efforts obligations to do all in one’s power to achieve a result, but without ultimate commitment.161
In the one case, the fact that the result is not achieved is both necessary and sufficient to generate responsibility; in the other, ‘what counts is the violation of the best effort obligation, not the end result generally achieved’.162 In each case, it is the primary rule which determines the relevant standard of performance:
Some obligations of conduct or means may only be breached if the ultimate event occurs (i.e. damage to the protected interest); others may be breached by a failure to act even without eventual damage. International law neither has, nor needs to have, a presumption or rule either way. It depends on the context, and on all the factors relevant to the interpretation of treaties or the articulation of custom.163
References(p. 452) At the level of analysis, the result/conduct distinction can nevertheless play a helpful role, not least in the human rights field, where process (and the adequacy, effectiveness and ultimately legality thereof) is also relevant. Conduct and result overlap; torture, ill treatment, arbitrary deprivation of life and refoulement, are all examples of forbidden conduct; but due process and accountability mechanisms are necessary, linked, though still separate bases for determining whether ‘protection’ is available or effective.
The particular nature of treaties generally and those for the protection of individuals and of human rights obligations illustrates the variety of what is required to avoid responsibility.164 So, for example, article 22(1) of the 1961 Vienna Convention on Diplomatic Relations declares a clear obligation of result: ‘The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.’165 In this case, the internationally required result is that of omission by the organs of the receiving State; in other cases, positive action may be required. Thus, States parties to the 1966 International Convention on the Elimination of All Forms of Racial Discrimination agree, among others, ‘to amend, rescind or nullify any laws or regulations which have the effect of creating or perpetuating racial discrimination wherever it exists’.166 Similarly, the specific enactment of legislation may be required, as by article 20 of the 1966 International Covenant on Civil and Political Rights: ‘Any propaganda for war shall be prohibited by law’.167 In all such cases, the international obligation requires a specifically determined result, and ascertaining if the obligation has been fulfilled simply turns on whether the State’s act or omission is or is not in fact in conformity with the internationally required result, the sufficient injury being the breach of legal duty.168
Other international obligations, by their nature or the manner in which they are framed, may concede the State’s full freedom in its choice of means for implementation. Article 22(2) of the 1961 Vienna Convention on Diplomatic Relations declares the receiving State’s ‘special duty to take all appropriate steps to protect the premises of the mission’, but defines those steps no further. Article 10 of the ILO Migrant Workers (Supplementary Provisions) Convention 1975 (No. 143) obliges ‘Each Member for which the Convention is in force … to declare and pursue a national policy designed to promote and to guarantee, by References(p. 453) methods appropriate to national conditions and practice, equality of opportunity and treatment … ’169 Such ‘obligations of conduct’ are especially common in standard-setting treaties (for example, treaties of establishment guaranteeing most-favoured-nation treatment) and in human rights instruments. On occasion, full freedom of choice can be implied from the terms of the treaty itself, while in other cases a preference for the adoption of legislative measures will be indicated. Nevertheless, though legislation may be considered appropriate, even essential, it is evidently only one way by which the international obligation can be fulfilled. It is not so much the law which counts, as that compliance be assured. As the International Law Commission noted in 1977: ‘ … so long as the State has not failed to achieve in concreto the result required by an international obligation, the fact that it has not taken a certain measure which would have seemed especially suitable for that purpose—in particular, that it has not enacted a law—cannot be held against it as a breach of that obligation’.170
In two human rights treaties concluded in the 1960s, States are called upon to enact such ‘legislative or other measures as may be necessary’171 to give effect to rights; and to ‘prohibit and bring to an end’ certain conduct, ‘by all appropriate means, including legislation as required by circumstances’.172 Words such as ‘necessary’ and ‘appropriate’ indicate that the State enjoys discretion in its choice of implementing measures, but the standard of compliance remains an international one. The question is that of effective or efficient implementation of the treaty provisions, in fact, and in the light of the principle of effectiveness of obligations.173 Just as taking the theoretically most appropriate measures of implementation is not conclusive as to the fulfilment of an international obligation, so failing to take such measures is not conclusive as to breach.174 The same holds good with regard References(p. 454) to a State’s adoption of a potentially obstructive measure, so long as such measure does not itself create a specific situation incompatible with the required result; what counts is what in fact results, not enactment and promulgation, but application and enforcement.175
The test of implementation of international obligations might suggest simply comparing what is required with what is achieved. In practice, however, major problems of interpretation and appreciation arise in view of, amongst others, the relative imprecision of the terminology employed in standard-setting conventions; the variety of legal systems and practices of States; the role of discretion, first, in the State’s initial choice of means, and secondly, in its privilege on occasion to require resort to such remedial measures as it may provide. In a standard setting context, local remedies are especially important;176 their availability and effectiveness will often determine the question of fulfilment or breach of obligation, the ‘generation’ of international responsibility and the implementation of this responsibility.
The Difficulties attaching to the general issue of incorporation are illustrated by two occasions on which the UK performance in the light of its international obligations was called in question, and notwithstanding the passage of time, the central issues remain relevant. In 1979, the United Kingdom was examined by the Human Rights Committee with regard to its report on the implementation of the International Covenant on Civil and Political Rights. The UK representative disagreed with the view that States were obliged to adopt positive measures;177 what mattered was the treatment that people received and the way in which the law worked in practice.178 This position was maintained when incorporation References(p. 455) and effective implementation of the 1951 Convention relating to the Status of Refugees were discussed in the House of Commons in May 1979,179 continuing a debate begun the previous year in the House of Lords.180 The Minister for State noted that nothing in the Convention required incorporation, and that it imposed no obligation and offered no guidance in the matter of procedures for the determination of refugee status.181 While accepting that the Executive Committee’s 1977 recommendations182 might comprehend ‘the basic requirements for the effective implementation of the Convention’, he nevertheless felt that the UK’s existing procedure was sufficient.
The arguments regarding legislative implementation and establishment of a procedure, while formally correct in the light of obligations actually assumed, fail to go to the heart of the matter, which is effectiveness of implementation. That incompatibilities with the Convention had developed was impliedly admitted in the announcement of certain changes in practice.183 UK law, like that of many countries, was of general application, making no special provision for refugees. It therefore needed to be supplemented by a judicious use of administrative discretion, both to avoid the application of the general law and to secure appropriate benefits.184 Since then, the United Kingdom has witnessed a plethora of immigration and asylum legislation, to the point that the courts have been driven to conclude that the 1951 Convention has been effectively incorporated into domestic law.185
The effective implementation of the 1951 Convention must therefore first take into account the fact that States parties have undertaken particularly important obligations governing (a) the legal definition of the term ‘refugee’; (b) the application of the Convention to refugees without discrimination; (c) the issue of travel documents to refugees; (d) the treatment of refugees entering illegally; (e) the expulsion of refugees; and (f) the non-refoulement of refugees. These topics all fall, References(p. 456) somewhat loosely, within the field of immigration or aliens law; such law itself is most usually of general application, so that if special measures are not taken to single out the refugee, he or she is likely to be denied the rights and benefits due under the Convention and Protocol.186 Secondly, the Convention defines a status to which it attaches consequences, but says nothing about procedures for identifying those who are to benefit. While the choice of means may be left to States, some such procedure would seem essential for the effective implementation and fulfilment of Convention obligations. It should be available to deal with claims to refugee status, whether made in the context of applications for asylum either at the border or after admission, for a travel document, for a social security benefit, or in an appeal against expulsion.187
Specific legislative action in the above matters may well be sufficient to remove the refugee from the ambit of the general law; it might therefore be considered a necessary condition for effective implementation. The establishment of a procedure for the determination of refugee status, given the object and purpose of the instruments in question, may likewise be considered a further necessary condition. Whether in any given case such measures, either together or alone, are sufficient conditions for effective implementation remains to be judged in the light of the actual workings of the municipal system as a whole.
2.2.1 The principle of good faith
Closely allied to every State’s obligation to ensure that its domestic law conforms to its international obligations stands the principle of good faith already referred to in specific protection contexts.188 In the words of the International Court of Justice in the Nuclear Tests case, good faith is ‘One of the basic principles governing the creation and performance of legal obligations, whatever their source …’.189 Article 2(2) of the United Nations Charter places the principle in the forefront of those which are to govern the conduct of Members.190 While it has an ethical References(p. 457) content,191 its essentially legal character in international law has also been recognized. In the Norwegian Loans case, Judge Lauterpacht observed that, ‘Unquestionably, the obligation to act in accordance with good faith, being a general principle of law, is also part of international law.’192 Fitzmaurice, a former Special Rapporteur on the Law of Treaties and Judge of the International Court of Justice, defined the principle as follows:
The essence of the doctrine is that although a State may have a strict right to act in a particular way, it must not exercise this right in such a manner as to constitute an abuse of it; it must exercise its rights in good faith and with a sense of responsibility; it must have bona fide reasons for what it does, and not act arbitrarily and capriciously.193
Lack of good faith in the implementation of a treaty must be distinguished from a violation of the treaty itself. A State lacks good faith in the application of a treaty, not only when it openly refuses to implement its undertakings, but more precisely, when it seeks to avoid or to ‘divert’ the obligation which it has accepted, or to do indirectly what it is not permitted to do directly.194 In the Free Zones case, France was under treaty obligations to maintain certain frontier zones with Switzerland free from customs barriers. The Permanent Court of International Justice, while recognizing that France had the sovereign and undoubted right to establish a police cordon at the political frontier for the control of traffic and even for the imposition of fiscal taxes other than customs duties, held that, ‘A reservation must be made as regards the case of abuses of a right, since it is certain that France must not evade the obligation to maintain the zones by erecting a customs barrier under the guise of a control cordon.’195 Similarly, in the North Atlantic Coast Fisheries case (Great Britain-United States), it was recognized that Great Britain had the right and duty, as the local sovereign, to legislate in regulation of fisheries. However, ‘ … treaty obligations are to be executed in perfect good faith, therefore References(p. 458) excluding the right to legislate at will concerning the subject-matter of the treaty, and limiting the exercise of sovereignty of the State bound by a treaty with respect to that subject-matter to such acts as are consistent with the treaty’.196
The question is, to what extent, if at all, does the principle of good faith directly oblige a State to a particular course of conduct.197 The doctrine of abuse of rights is not commonly accepted today as a source of obligation in itself, but notions of reasonableness and proportionality do play a comparable role, particularly in the field of human rights. Moreover, the principle of good faith invites particular attention to the effects of State action, rather than to the (subjective) intent or motivation, if any, of the State itself.
In relation to the implementation of treaty obligations, the good faith dimension may be relatively clear; for example, only if the appropriate legislative and administrative steps are taken, will refugees be identified and guaranteed protection against refoulement. What remains less clear is the legality of State action outside the scope of a particular treaty, for example, in relation to control measures applied beyond territorial jurisdiction, with a view to preventing those in search of refuge from reaching the State and claiming asylum. This is an area with much grey in it, but also one the parameters of which are nonetheless laid down in many ‘peripheral’ rules dealing, among others, with the use of force, racial discrimination, and, it is submitted, reasonableness and proportionality.198
3. Palestinian refugees: nationality, statelessness, and protection
Palestine was a British mandate during the time of the League of Nations, up until 15 May 1948. Under Ottoman rule, the inhabitants of Palestine were considered Turkish nationals; under the mandates system, the local inhabitants were not to be considered as nationals of the administering powers, although they might benefit from the exercise of diplomatic protection.199 Palestinian citizenship was regulated by UK statutory instrument,200 and included acquisition by birth, but a References(p. 459) Palestinian citizen was not a British subject,201 and Palestinian citizens were treated in Great Britain as British Protected Persons.202 Palestinian citizens were eligible for a British passport issued by the government of Palestine, which referred to the national status of its holder as ‘Palestinian citizen under Article One or Three of the Palestinian Citizenship Order, 1925–41’.203
As a result of the Arab-Islamic conflict which began in 1948, Palestinian refugees were not only barred from returning to their homes, but were also effectively and retroactively deprived of their citizenship. Palestinian citizenship, as a product of the mandatory’s authority, terminated with the mandate and with the proclamation of the State of Israel, even though there is some authority in international law for the continuance of certain internal laws upon the cession or abandonment of territory.204 Israel had no nationality legislation until 1952.
Nationality falls, prima facie, within the reserved domain of domestic jurisdiction; that is, international law recognizes that each State determines who are its citizens, and how such citizenship shall be obtained or transmitted.205 International law is not indifferent to those claimed or disclaimed, but the amount of positive guidance is limited, and much depends upon the context. For international law purposes, States do not enjoy the freedom to denationalize their nationals in order to expel them as ‘non-citizens’;206 however, if the effects of such denationalization are internal only, for example, the denial of civic rights, international law traditionally has had little to say on the matter.207 There is likewise no obligation in international law to naturalize a resident non-citizen, even though such non-citizen may over time and for certain international law purposes acquire the effective nationality of the State of residence.208
The existence of a State implies a body of nationals, and a population within a relatively well-defined territory is an accepted criterion of statehood. In early decisions, however, Israeli courts held that with the termination of the Palestine mandate, former Palestine citizens had lost their citizenship without acquiring any References(p. 460) other.209 This view was rejected in one case only, where the fact of residence and the international law governing succession of States were invoked.210 For the purposes of Israeli municipal law, however, the issue was resolved by the Supreme Court in Hussein v. Governor of Acre Prison, and by the 1952 Nationality Law.
In Hussein’s case, the Court agreed that Palestinian citizenship had come to an end, and that former Palestine citizens had not become Israeli citizens.211 The Nationality Law confirmed the repeal of the Palestine Citizenship Orders 1925–42, retroactively to the day of the establishment of the State of Israel. It declared itself the exclusive law on citizenship, which was available by way of return,212 residence, birth, and naturalization.213 Former Palestinian citizens of Arab origin might be incorporated in the body of Israeli citizens, provided they met certain conditions: they must have been registered under the Register of Inhabitants Ordinance on 1 March 1952; have been inhabitants of Israel on the day of entry into force of the Nationality Law (14 July 1952); and have been in Israel, or an area which became Israel, from the day of establishment of the State to the day of entry into force of the law, or have entered legally during that period.214 These strict requirements meant that the majority of those displaced by the conflict in 1948 were effectively denied Israeli citizenship. If international law raised a presumption of entitlement to local citizenship for residents at the moment of establishment of the State,215 subsequent developments have made any such claims redundant.216
References(p. 461) In fact, many of the Palestinians who fled, at least initially during the conflict of 1947–49, were citizens of Palestine under British mandate and, as ‘British protected persons’, entitled to the protection of the Crown. With the termination of the British mandate on 14/15 May 1948, their nationality status may have become uncertain from a municipal law perspective, although from an international law perspective, their ‘link’ to the territory remained.217 Palestinian refugees were admitted to neighbouring countries on what was expected to be a temporary basis; local citizenship, for the most part, was not available, other than in Jordan. In these circumstances, many Palestinians, not being recognized as a citizen or national of any State, were clearly stateless.218 The formal legal situation remains problematic, notwithstanding the recognition accorded by some States to the entity ‘Palestine’, and notwithstanding the United Nations’ recognition of the Palestine Liberation Organization as the legitimate representative of the Palestinian people.219 The status of Palestinians will therefore continue to raise Difficulties, so far as they may individually seek protection as stateless persons or as refugees under article 1D of the Convention.220 Palestinians who, for any reason, are not included in the peace settlement (for example, if they do not or are not able to return to Palestinian territory, and/or to obtain protection from the Palestinian authorities), will likely come within the terms of article 1D of the Convention. If required to leave their countries of habitual residence in the future, then their situation not having been ‘definitively settled in accordance with the relevant resolutions adopted by the General Assembly’, they will be entitled to international protection as refugees or, in the alternative, as stateless persons.
Footnotes:
1 On the inter-war years generally, see Simpson, J. H., The Refugee Problem, (1939); Reale, E., ‘Le problème des passeports’, 50 Hague Recueil, (1934-IV), 89; A Study of Statelessness, (1949): UN doc. E/1112 and Add. 1, 34–8; Sjöberg, T., The Powers and the Persecuted: The Refugee Problem and the Intergovernmental Committee on Refugees, (1991), Ch. 1.
2 (1921) 2(2) LNOJ 227. They included some 50,000 former prisoners of war unwilling to return, civilians who had fled the Bolshevik revolution, as well as members of the various defeated armies which had opposed the revolutionaries during the first years. The de facto unprotected status of many was further compounded by two decrees of October and December 1921, under which Soviet citizenship was forfeited by certain groups residing abroad; see generally Fisher Williams, J., ‘Denationalization’, 8 BYIL 45 (1927).
4 Annexe 224, Minutes of the 13th Session of the Council of the League of Nations, Geneva, 17–28 June 1921; cited by Weis, P., ‘The International Protection of Refugees’, 48 AJIL 193, 207–8 (1954). During the 1920s, large-scale relief operations were undertaken by private organizations for the multitudes displaced by the First World War and its aftermath: Marrus, M., The Unwanted—European Refugees in the Twentieth Century, (1985), 82–6. In the same period, considerable international attention and assistance focused also on spontaneous, coerced and agreed population exchanges in the Balkans; on the exchanges between Greece and Turkey and Greece and Bulgaria: Marrus, The Unwanted, 96–109; Meindersma, C., ‘Population Exchanges: International Law and State Practice—Part I’, 9 IJRL 335 (1997); ‘Part 2’, 9 IJRL 613 (1997).
5 Marrus, The Unwanted, 74–81, 119–21. Arrangement relating to the Issue of Identity certificates to Russian and Armenian Refugees of 12 May 1926: 84 LNTS No. 2006.
6 Arrangement concerning the Extension to other Categories of Refugees of certain Measures taken in favour of Russian and Armenian Refugees of 30 June 1928: 89 LNTS No. 2006.
7 Arrangement relating to the legal status of Russian and Armenian refugees, 30 June 1928: 89 LNTS No. 2005. It came into force between ten States.
8 Ibid., Res. (1). Other resolutions made recommendations, among others, in respect of choice of law in matters of marriage and divorce; that refugees not be denied certain rights and privileges on the basis of lack of reciprocity; that they be exempt from the cautio judicatum solvi (security for costs in legal proceedings); that they be accorded national treatment in matters of taxation.
9 Agreement concerning the functions of the representatives of the League of Nations High Commissioner for Refugees: 93 LNTS No. 2126. In France, this function was taken over by the International Refugee Organization (IRO) (agreement cited by Weis, P., ‘Legal Aspects of the Convention of 28 Jul. 1951 relating to the Status of Refugees’, 30 BYIL 478, 484 (1953)), and subsequently by the Office français de protection des réfugiés et apatrides (OFPRA): loi no. 52-893 du 25 juillet 1952, art. 4, décret no. 53-377 du 2 mai 1953, art. 5. See now, décret no. 2004-814 du 14 août 2004; loi du 10 décembre 2003 (loi 2003-1176, 10 décembre 2003, en vigueur le 1er janvier 2004).
10 This Office was initially set up outside the League, owing to German Government opposition. Two years later, the High Commissioner, James G. McDonald, resigned, observing in a letter of 27 Dec. 1935 to the Secretary-General of the League, that private and international organizations could only mitigate an increasingly grave and complex situation. Given the condition of the world economy, resettlement opportunities were few and the problem had to be tackled at source. An annexe to his letter called attention to human rights in Germany, to that country’s international obligations towards minorities, and the violation of the rights and territorial sovereignty of other States that was involved by forced migration, denationalization, and withdrawal of protection: see Marrus, The Unwanted, 161–6; Jennings, R.Y., ‘Some International Law Aspects of the Refugee Question’, 20 BYIL 98 (1939).
11 League of Nations, O.J. Special Supp., no. 189, (1938) 86; see also Provisional Arrangement concerning the Status of Refugees coming from Germany of 4 Jul. 1936: 171 LNTS No. 3952.
12 The functions of the Committee were defined in a resolution adopted on 14 Jul. 1938; text in A Study of Statelessness, (above, n.1), 116–18. For a full account, see Sjöberg, T., The Powers and the Persecuted: The Refugee Problem and the Intergovernmental Committee on Refugees (IGCR), 1938–1947, (1991). And for later developments, Salomon, K., Refugees in the Cold War: Toward a New International Refugee Regime in the Early Postwar Era, (1991).
13 Sjöberg, The Powers and the Persecuted, Ch. 4. Issues discussed included a British proposal to provide temporary asylum to refugees ‘as near as possible to the areas in which the people find themselves at the present time and from which they may be returned to their homelands with the greatest expediency on the termination of hostilities’: ibid., 135.
14 See generally Woodbridge, G., UNRRA: The History of the United Nations Relief and Rehabilitation Administration, 3 vols., (1950); Salomon, K., Refugees in the Cold War, (1991), 46–54, 57–61 and generally; Salomon, K., ‘UNRRA and the IRO as Predecessors of UNHCR’, in Rystad, G., ed., The Uprooted: Forced Migration as an International Problem in the Post-War Era, (1990), 157; Hathaway, J., ‘The Evolution of Refugee Status in International Law: 1920–1950’, 33 ICLQ 348 (1984).
15 By the beginning of 1946, an estimated three-quarters of the displaced in Europe had been sent home: Marrus, The Unwanted, 320.
17 The IRO Constitution was adopted by thirty votes to five, with eighteen abstentions: UNGA res. 62(I), 15 Dec. 1946. A Preparatory Commission (PCIRO) was set up to ensure continuity between UNRRA and the IGCR (both of which were wound up on 30 June 1947) and the IRO, pending sufficient Ratifications to bring the latter’s Constitution into force. This became effective 20 Aug. 1948.
18 See generally UNGAOR, 1st Sess., 2nd Part, Supplement No. 2, Report of ECOSOC to the General Assembly, 53–62; UN doc. A/265, Report of the Third Committee, Summary Records, 1420–54; UN doc. A/275, Budget of the IRO. The budget was based on an estimated total of 844,525 European refugees and displaced persons at 1 Jan. 1947. For background (and highly political) debate in the Third Committee, see UNGAOR, Third Committee, 1st Sess., 1st Part, Summary Records: UN doc. A/C.3/SR.4, SR.5, SR.6, SR.7 and SR.8.
19 Under art. 10, IRO Constitution, as amended by the Fifth Committee, contributions to large-scale resettlement operations were to be made on a voluntary basis: UN doc. A/275, para. 7 and Annex I.
22 See UNGAOR, 2nd Sess., (1947), Plenary, Summary Records, 1025–31; Annex 12, 257–66. Also, UNGAOR, 4th Sess., (1949), Third Committee, Summary Records, 72–89; Plenary, Summary Records, 212–25.
23 See, for example, UNGAOR, 3rd Sess., 2nd Part, Third Committee, Summary Records, 434 (Poland); 446 (Yugoslavia); 451 (Ukrainian SSR); also, UNGAOR, 3rd Sess., 2nd Part, Plenary, Summary Records, 504–18.
24 See UNGAOR, 4th Sess., Third Committee, Summary Records, 82–3 for an exception, the UK representative referring to instances of forced migration and deportation in the USSR.
27 See further below, s. 1.4.1.
28 UNGA res. 319(IV), 3 Dec. 1949. For completeness sake, mention should also be made of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), established by UNGA res. 302(IV), 8 Dec. 1949, and on which see further below at s. 1.2; and the United Nations Korean Reconstruction Agency established by UNGA res. 401A and B(V), 1 Dec. 1950, which was principally concerned with relief and economic reconstruction, and concluded its activities in 1958.
29 For a comprehensive review of UNHCR’s performance since it was established, see Loescher, G., The UNHCR and World Politics: A Perilous Path, (2001); for a critique of the international protection regime and proposals for its evolution, see Helton, A. C., The Price of Indifference: Refugees and Humanitarian Action in the New Century, (2002).
30 For full text of resolution and Statute, see below Annexe 1, No. 3. Adopted by thirty-six votes to five, with eleven abstentions. The United Kingdom abstained, principally because of concerns over the refugee definition in the Statute, including the fact that, in a remarkably prescient observation, the High Commissioner was likely to have difficulty in practice in determining the persons whom he was competent to protect: UNGAOR, 5th Sess., Plenary, Summary records, 669–80, paras. 66–8, 14 Dec. 1950.
32 Ibid., para. 2. The ‘non-political’ Qualification was introduced on the proposal of Yugoslavia. Para. 3, however, obliges the High Commissioner to follow policy directives of the General Assembly and the Economic and Social Council; see UNGA res. 60/129, 16 Dec. 2005, para. 13.
33 The protection of refugees has its origins in a human rights context, and the General Assembly has reaffirmed international protection as a principal function of UNHCR since at least 1974: UNGA res. 3272(XXIX), 10 Dec. 1974. Recent resolutions also emphasize that ‘the protection of refugees is primarily the responsibility of States, whose full and effective cooperation, action and political resolve are required to enable the Office to fulfil its functions’: UNGA res. 60/129, 16 Dec. 2005, para. 7.
35 Besides the declared functions, UNHCR’s indirect or promotional activities encompass the application of national laws and regulations benefitting refugees, the development and adoption of appropriate national laws, regulations, and procedures, promotion of accession to international instruments, the development of new legal instruments, and overall the development of doctrine; see Lewis, C., ‘UNHCR’s Contribution to the Development of International Refugee Law: Its Foundations and Evolution’, 17 IJRL 67–90 (2005); Türk, V., ‘The Role of UNHCR in the Development of International Refugee Law’, in Nicholson, F. & Twomey, P., Refugee Rights and Realities, (1999), 153. The Executive Committee has also approved the dissemination and promotion of refugee law, training and information; see, for example, Report of the 31st Session (1980): UN doc. A/AC.96/588, para. 48(1) (k).
36 Sadruddin Aga Khan, ‘Legal problems relating to refugees and displaced persons’, Hague Recueil (1976-I) 331–2; Schnyder, F., ‘Les aspects juridiques actuels du problème des réfugiés’, Hague Recueil (1965-I) 319, 416.
37 See above, Ch. 2, s. 3.2.
38 In 1980, for example, the UNHCR Executive Committee ‘emphasized … the leading responsibility of (UNHCR) in emergency situations which involve refugees in the sense of its Statute or of General Assembly resolution 1388(XIV) and its subsequent resolutions’: Report of the 31st Session (1980): UN doc. A/AC.96/588, paras. 29.A(c), 29.B(c)(e)(f)). Those ‘subsequent resolutions’ in turn tracked the UNHCR’s good Offices work in securing contributions for assistance to refugees not within the competence of the UN, its development to include protection and assistance activities, and eventual recognition of a general responsibility to seek solutions to the problems of refugees and displaced persons of concern to UNHCR, wherever they occur; see UNGA resolutions 1499(XV), 5 Dec. 1960; 1673(XVI), 18 Dec. 1961; 1959(XVIII), 12 Dec. 1963; 2294(XXII), 11 Dec. 1967; 3143(XXVIII), 14 Dec. 1973; 34/60, 29 Nov. 1979. Beginning in the early 1990s, UNHCR has engaged in a number of operations outside its general mandate to protect refugees, including the provision of humanitarian assistance in an active conflict zone (Bosnia & Herzegovina), and it has frequently been pressed to take on a more active assistance and protection role with internally displaced persons, for example, in Kosovo and Darfur. See further below, Ch. 9, s. 2.
39 During debate on the Statute, one representative suggested that the lack of protection should be the sole criterion for determining UNHCR’s competence: UNGAOR, 5th Session, Third Committee, Summary Records, 324th Meeting, 22 Nov. 1950, para. 40f (United Kingdom); see also ibid., 325th Meeting, 24 Nov. 1950, para. 36 (Chile—protection should be extended to anyone who, for reasons beyond their control, could no longer live in the country of their birth); 329th Meeting, 29 Nov. 1950, paras. 3, 8f (Turkey—those needing protection included fugitives from war or persecution, or for political reasons). While in 1950 the debate was premised on the assumption that those needing protection would have left their country of origin, UNHCR has been increasingly called on to provide protection and humanitarian assistance to persons displaced within their own countries. See below, Ch. 9, s. 2 and above, Ch. 2, s. 3.3.
40 In resolutions 3274(XXIX), 10 Dec. 1974, and 31/36, 30 Nov. 1976, the General Assembly entrusted UNHCR with responsibilities under arts. 11 and 20 of the 1961 Convention on the Reduction of Statelessness (examination of claims and assistance in their presentation to the appropriate authorities). See also Executive Committee Conclusion No. 78 (1995), Report of the 46th Session, UN doc. A/AC.96/860, para. 20; UNHCR, ‘UNHCR’s Activities in the Field of Statelessness: Progress Report’, UN doc. EC/51/SC/CRP.13, 30 May 2001, in 13 IJRL 702 (2001); Executive Committee Conclusion No. 106 (2006), ‘Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons’.
41 Man-made disasters have never been precisely defined, but General Assembly resolutions have indicated typical instances; see, for example, on refugees from Algeria: UNGA resolutions 1286(XIII), 5 Dec. 1958; 1389(XIV), 20 Nov. 1959; 1500(XV), 5 Dec. 1960 and 1672(XVI), 18 Dec. 1961. See also UNGA resolutions 1671(XVI), 18 Dec. 1961 (Angolan refugees in the Congo); 2790(XXVI), 6 Dec. 1971 (East Pakistan refugees in India); 3271(XXIX), 10 Dec. 1974 (voluntary repatriation of refugees from territories emerging from colonial rule). ‘Man-made disasters’ are now ‘human-made’, according to the 1998 Guiding Principles on Internal Displacement.
42 ‘The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.’ UNHCR was originally set up for three years; its mandate is now subject to renewal every five years and was recently renewed in 2002 for a further five years from 1 Jan. 2004: UNGA res. 57/186, 18 Dec. 2002. See further, Sarooshi, D., ‘The Legal Framework Governing United Nations Subsidiary Organs’, 67 BYIL 413 (1997); Sarooshi, D., International Organizations and their Exercise of Sovereign Powers, (2005).
43 From the beginning, the General Assembly acknowledged that refugees were an international responsibility, and that it would be necessary and desirable to modify and extend the competence of UNHCR to new groups of refugees and to new fields of activity: see UNGA res. 319(IV), 3 Dec. 1949, Annex, para. 3.
44 Statute, para. 3. The High Commissioner is elected by the General Assembly, on the nomination of the Secretary-General: ibid. para. 13. This (compromise) solution was adopted precisely in order to shelter the High Commissioner from the highly political work of the UN Secretariat, and to ensure that UNHCR enjoyed the necessary independence, authority and impartiality to carry out its humanitarian work. On background and one Secretary-General’s attempt to pre-empt established consultative procedures, see ‘Sadako Ogata elected as UN High Commissioner for Refugees’, 3 IJRL 120 (1991).
46 Ibid., para. 9. Since 1972, at least, such additional activities have also included assistance and de facto protection to repatriating refugees and internally displaced persons, or assistance to local populations affected by a refugee influx. To these specific or implied mandate responsibilities must now also be added the special humanitarian tasks entrusted to UNHCR, for example, in former Yugoslavia, including assistance and, within difficult limits, protection of populations at risk in their own land.
47 Ibid., para. 11. As a corollary, the same paragraph entitles the High Commissioner to present his or her views before the General Assembly and ECOSOC and their subsidiary bodies. Since 1969, the practice has been to transmit the report without debate to the General Assembly, unless one or more ECOSOC members or the High Commissioner request otherwise: Decision on Item 9, ECOSOC, OR, Resumed 47th Session: UN doc. E/4735/Add.1.
52 For membership, see below, Annexe 3.
54 For text of selected conclusions, see the Online Resource Centre: <http://www.oup.com/uk/refugeelaw> and for a full collection, see <http://www.unhcr.org> and UNHCR, Refworld, 15th edn., 2006; also Sztucki, J., ‘The Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR Programme’, 1 IJRL 285 (1989).
56 Cf. Morris, N., ‘Refugees: Facing Crisis in the 1990s—A Personal View from within UNHCR’, 2 IJRL, Special Issue—September 1990, 38.
57 Cf. Sarooshi, International Organizations, above n.42; Alvarez, J. E., International Organizations as Law-makers, (2005).
58 Art. II of the 1967 Protocol is to similar effect. See Kälin, W., ‘Supervising the 1951 Convention Relating to the Status of Refugees: Article 35 and beyond’, in Feller, Türk, & Nicholson, Refugee Protection in International Law, 613; Summary Conclusions on supervisory responsibility, ibid., 667
59 Art. VIII; Cartagena Declaration on Refugees, Conclusion and Recommendations, II; below, Annexe 2, No. 7.
61 For example, the Statute refers to the High Commissioner supervising the application of international conventions, promoting certain measures through special agreements with governments, and consulting governments on the need to appoint local representatives: paras. 8(a), (b), 16.
62 See generally, South West Africa, Voting Procedure, Advisory Opinion, ICJ Rep., (1955), 67, at 120–2—separate opinion of Judge Lauterpacht, noting that General Assembly resolutions are ‘one of the principal instrumentalities of the formation of the collective will and judgment of the community of nations represented by the United Nations’.
63 Voting Procedure case, ICJ Rep., (1955), 67, at 119. See also Judge Lauterpacht’s remarks generally in regard to good faith in the exercise of discretion: ibid., 120.
65 Cf. Schwarzenberger & Brown, A Manual of International Law, (6th edn., 1976), 115, commenting on the movement of an implied consensual right or exercise of functional protection from its basis in consent to its acquisition of ‘an increasingly absolute validity’.
67 In Schwarzenberger & Brown, Manual, at 64, the traditional view was stated thus: ‘Whether [the individual] is entitled to benefit from customary or consensual rules of international law depends on his own link—primarily through nationality—with a subject of international law which, on the international level, is alone competent to assert his rights against another subject of international law.’ Later, the authors noted that, ‘By means of conventions, attempts have been made to alleviate the position of refugees and stateless persons. Otherwise, they are objects of international law for whom no subject of international law is internationally responsible—a notable twentieth-century contribution to the category of res nullius’: 114–15. This was questionable, even in 1976. See now Jennings, R.Y. & Watts, A., eds., Oppenheim’s International Law, (9th edn., 1992), vol.1, paras. 150, 411, 511–15.
68 See art. 26, 1969 Vienna Convention on the Law of Treaties: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’
69 Kälin has argued that the obligations to implement the provisions of the 1951 Convention/1967 Protocol are, ‘obligations erga omnes partes, that is, obligations towards the other States parties as a whole. This is clearly evidenced by Article 38 of the 1951 Convention and Article IV of the 1967 Protocol, entitling each State Party to the Convention or the Protocol to refer a dispute with another State “relating to its interpretation or application” to the International Court of Justice even if it has not suffered material damage.’ Kälin, W., ‘Supervising the 1951 Convention Relating to the Status of Refugees’, in Feller, Türk, & Nicholson, Refugee Protection in International Law, 613, 632; see also at 636.
70 See art. 2, International Law Commission, Articles on the Responsibility States for Internationally Wrongful Acts; text annexed to UNGA res. 56/83, ‘Responsibility of States for internationally wrongful acts’, 12 Dec. 2001.
71 Ibid., art. 42. See also Crawford, J., The International Law Commission’s Articles on State Responsibility, (2002), Introduction, 38–42; ILC Commentary, ibid., 254–60.
72 Crawford, above note, ‘Commentary’, para. 8, ibid., at 258; see also para. 11, ibid., at 259 on injury arising from violations of collective obligations. This situation is therefore distinct from that described in art. 48 of the ILC ‘Articles’, dealing with the category of obligations ‘erga omnes partes’, that is, obligations owed, for example, to all the States party to a specific legal regime, such as a regional human rights convention. The phrase ‘erga omnes’ commonly describes obligations with a broader reach, to the international community of States as a whole. Overlap is likely between the two, especially in the human rights field. See Sicilianos, L.-A., ‘The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’, 13 EJIL 1125, 1136 (2002).
73 See R. (on the application of Al Rawi) v. Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ. 1279; R. (on the application of Abassi) v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598.
74 1951 Convention, art. 38; 1967 Protocol, art. IV. Under the Protocol, but not under the Convention, States are entitled to make reservations to the article on settlement of disputes, and many have; see below, Ch. 10, s. 1.
75 See South West Africa cases, preliminary objections, ICJ Rep., (1962), 319, at 424–33 (separate opinion of Judge Jessup). But cf. South West Africa cases, second phase, ICJ Rep., (1966), 6 at 32–3, 47 (holding that individual States do not have a legal right to require the performance of South Africa’s mandate over South West Africa).
76 Barcelona Traction case, ICJ Rep., (1970), 3 at 32; also 1967 Declaration on Territorial Asylum, art. 2(1). An inter-State procedure also exists under other regional arrangements, such as the 1969 American Convention on Human Rights (arts. 45, 62), the 1981 African Charter on Human and Peoples’ Rights (art. 47), and the 1966 International Covenant on Civil and Political Rights, art. 41; the last-mentioned has not so far been used.
77 But see Ch. 9.
78 For example, only the General Assembly or the Security Council may request advisory opinions; ‘other organs’ of the UN and specialized agencies may be authorized by the General Assembly to request such opinions, ‘on legal questions arising within the scope of their activities’: art. 96, UN Charter; art. 65, Charter of the ICJ. But see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep., (2004), No. 131.
79 Art. 41 provides: ‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the rights of either party.’ See Merrills, J. G., ‘Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice’, 44 ICLQ 90 (1995).
83 See Genocide Convention Case, ICJ Rep., (1993), 16; The Wall case, above n. 78.
84 Merrills, above n. 79, 103. Thus, the Court rejected claims relating to the territorial integrity of the applicant, as genocide concerns ‘the intended destruction of “a national, ethnic, racial or religious group” and not the disappearance of a State as a subject of international law’: ICJ Rep., (1993), 345, para. 42; Merrills, ibid., 105.
86 UNGA res. 181(II) A, 29 Nov. 1947, adopted with thirty-three votes in favour, thirteen against (including Lebanon, Saudi Arabia, Syria, and Yemen) and ten abstentions.
87 See generally, Morris, B., The Birth of the Palestinian Refugee Problem, 1947–1949 (1987); Schraum, A., The Iron Wall, (2000); Minority Rights Group, The Palestinians, (1984).
89 The Agency succeeded the Special Fund for Relief of Palestine Refugees, set up by UNGA res. 212(III), 19 Nov. 1948.
91 UNGA resolution 2252 (ES-V), 4 Jul. 1967 (confirmed by UNGA res. 2341 B(XXII), 19 Dec. 1967); and UNGA res. 56/54, 10 Dec. 2001.
92 In Lebanon, UNRWA-registered Palestinian refugees are entitled to residence permits; those not registered have no right to reside in the country, and neither do the children of unregistered Palestinian parents: McDowall, D., Lebanon: A conflict of Minorities, (1986), 8; Buehrig, E., The UN and the Palestinian Refugees—A Study in Non-Territorial Administration, (1971), 43. See also Cervenak, C. M., ‘Promoting Inequality: Gender-Based Discrimination in UNRWA’s Approach to Palestine Refugee Status’, 16 HRQ 300 (1994).
93 Statute, para. 7(1); Convention, art. 1D; see above, Ch. 4, s. 3.2. See, however, recent statements by UNHCR regarding its responsibilities towards Palestinians outside UNRWA’s area of operations: Report of the 29th Meeting of the Standing Committee, UN doc. A/AC.96/988, 7 Jul. 2004, para. 30; Report of the 20th Meeting of the Standing Committee, UN doc. A/AC.96/945, 2 Jul. 2001, para. 22.
95 Ibid., para. 11: ‘the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and … compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible’. Lawand, K., ‘The Right to Return of Palestinians in International Law’, 8 IJRL 532 (1996).
96 Cf. UNGAOR, 5th Sess., Plenary, Summary Records, 325th Meeting, 14 Dec. 1950, paras. 170–211. In his 1948 report to the General Assembly, the Mediator for Palestine, Count Bernadotte, referred to the misgivings of the Provisional Government in Israel regarding the return of Palestinian refugees; these derived from security, as well as from economic and political conditions. At that time, the Mediator doubted whether the security fears were in fact well-founded.
97 See Takkenberg, L., ‘The Protection of Palestine Refugees in the Territories Occupied by Israel’, 3 IJRL 414 (1991).
98 To the policies of States of refuge must be added the aspirations of the Palestinian people to self-determination and statehood. See further below, s. 3.
99 See Ramcharan, B. G., ‘Early Warning at the United Nations: The First Experiment’, 1 IJRL 379 (1989); Beyer, G. A., ‘Human Rights Monitoring and the Failure of Early Warning: A Practitioner’s View’, 2 IJRL 56 (1990)—the relevant recommendations of the Group of Governmental Experts and an extract from the United Nations Organization Manual describing the functions and organization of ORCI appear at 75–81; Beyer, G. A., ‘Monitoring Root Causes of Refugee Flows and Early Warning: The Need for Substance’, 2 IJRL Special Issue—September 1990 71; Rusu, S., ‘The Role of the Collector in Early Warning’, 2 IJRL Special Issue—September 1990 65; Ruiz, H. A., ‘Early Warning Is Not Enough: The Failure to Prevent Starvation in Ethiopia, 1990’, 2 IJRL Special Issue—September 1990 83; Dimitrichev, T. F., ‘Conceptual Approaches to Early Warning: Mechanisms and Methods—A View from the United Nations’, 3 IJRL 264 (1991); Drüke, L., Preventive Action for Refugee Producing Situations, (1990).
100 See UN doc. A/46/L.55, 17 Dec. 1991 (Sweden); Report of the Secretary-General on the review of the capacity, experience and coordination arrangements in the United Nations system for humanitarian assistance: UN doc. A/46/568.
101 These principles in the provision of humanitarian assistance derive directly from ICRC doctrine. See also Report of the Third Committee, Draft resolution I, Promotion of international cooperation in the humanitarian field: UN doc. A/45/751 (21 Nov. 1990).
103 Ibid., para. 10; see also paras. 13–17 (Prevention); 18–20 (Preparedness, including early warning); 35(h) (Coordinator to promote transition from relief to rehabilitation and reconstruction); 40–2 (Continuum from relief to rehabilitation and development).
104 UNGA res. 46/182 also created the Inter-Agency Standing Committee (IASC), the Consolidated Appeals Process (CAP) and the Central Emergency Revolving Fund (CERF), in order further to improve coordination.
105 See Report of the Secretary-General, ‘Strengthening of the coordination of emergency humanitarian assistance of the United Nations’, UN doc. A/60/87, 23 Jun. 2005; UNGA res. 60/124, 15 Dec. 2005. On the work of OCHA, see <http://ochaonline.un.org>.
106 UNGA res. 46/182, 19 Dec. 1991, Annex, paras. 33–9 (leadership of the Secretary-General, role and responsibilities of the Coordinator, establishment of Inter-Agency Standing Committee, and country-level co-ordination).
107 Ibid., para. 20: ‘Early-warning information should be made available in an unrestricted and timely manner to all interested Governments and concerned authorities, in particular of affected or disaster-prone countries. The capacity of disaster-prone countries to receive, use and disseminate this information should be strengthened … ’ Also, para. 35(g), identifying among the Coordinator’s responsibilities, ‘providing consolidated information, including early warning on emergencies, to all interested Governments and concerned authorities … ’.
109 UN res. 46/182, Annex, para. 36. See Report of the Secretary-General, above n. 105.
110 See Pugh, M. & Cunliffe, S. A., ‘The Lead Agency Concept in Humanitarian Assistance: The Case of the UNHCR’, Security Dialogue, vol. 28(1): 17–30 (1997).
111 Report of the Secretary-General, above n. 105.
115 See OCHA, Humanitarian Response Review, an independent report commissioned by the United Nations Emergency Relief Coordinator and Under-Secretary-General for Humanitarian Affairs, Office for the Coordination of Humanitarian Affairs, New York, Geneva, Aug. 2005. The report was prepared by Costanza Adinolfi, David S. Bassiouni, Halvor Fossum Lauritzsen, and Howard Roy Williams.
116 Ibid., s. 4.2, at 30–1.
117 Ibid., 31.
118 On which see, among others, Pugh M. & Cunliffe, S. A., ‘The Lead Agency Concept in Humanitarian Assistance: The Case of the UNHCR’, Security Dialogue, 1997, vol. 28(1), 17–30; Lautze, S., Jones, B. & Duffield, M., ‘Strategic Humanitarian Co-ordination in the Great Lakes Region, 1996–1997: An Independent Assessment’, Policy, Information and Advocacy Division, Office for the Co-ordination of Humanitarian Affairs, United Nations, New York, March 1998; Mooney, E. D., ‘Presence, ergo Protection? UNPROFOR, UNHCR and the ICRC in Croatia and Bosnia and Herzegovina’, 7 IJRL 407 (1995); Mendiluce, J. M., ‘War and disaster in the former Yugoslavia: The limits of humanitarian action,’ in World Refugee Survey—1994, 16.
119 Above n. 115, Ch. III, s. 2.2, p. 47. For constructive criticism of early experience with the cluster approach (but also an appreciation of its potential for coordination and information sharing), see Action Aid, ‘The Evolving UN Cluster Approach in the Aftermath of the Pakistan Earthquake: an NGO perspective’, 24 Apr. 2006. See also, Goodwin-Gill, G. S., ‘International Protection and Assistance for Refugees and the Displaced: Institutional Challenges and United Nations Reform’, Refugee Studies Centre, Oxford, May 2006: <http://refugeelaw.qeh.ox.ac.uk>.
120 See <http://www.unicef.org>.
121 UNGA res. 1714 (XVI), 19 Dec. 1961; see further, <http://www.fao.org> and <http://www.wfp.org>.
122 The WFP definition of emergency includes ‘urgent situations in which there is clear evidence that an event has occurred which causes human suffering or loss of livestock and which the Government concerned has not the means to remedy; and it is a demonstrably abnormal event which produced dislocation in the life of the community on an exceptional scale’.
123 See also, <http://www.who.int>.
124 Perruchoud, R., ‘From the Intergovernmental Committee for European Migration to the International Organization for Migration’, 1 IJRL 501 (1989). For the revised Constitution, see below Annexe 1, No. 9. The Constitution recognizes a number of key organizational and developmental principles: the relationship between migration and economic, social and cultural conditions in developing countries; and close cooperation and coordination on migration and refugee matters, among States, international organizations, governmental and non-governmental. See further, <http://www.iom.int>.
125 See Perruchoud, R., ‘Persons falling under the Mandate of the International Organization for Migration, to Whom the Organization may Provide Migration Services’, 4 IJRL 205, 211f (1992). The breadth of IOM’s mandate means that it can often provide appropriate services to individuals whose status is unclear, or who are not the responsibility of any other organization, such as rejected asylum seekers or internally displaced persons.
126 These activities are complementary to many other IOM programmes, for example, with respect to migration generally or in the field of return of talent.
127 See art. 9 of the First (wounded and sick, medical personnel, and chaplains), Second (including shipwrecked persons), and Third (prisoners of war) Conventions; and art. 10 of the Fourth Convention (civilian persons).
128 Art. 10 of the First, Second and Third Conventions; art. 11 of the Fourth Convention. The Conventions further provide for Protecting Powers to ‘lend their good Offices’ with a view to settling disputes: art. 11 of the First, Second and Third Conventions; art. 12 of the Fourth Convention. Compare generally art. 5, 1977 Protocol I, and see Veuthey, M., Guérilla et droit humanitaire, (1983), 329–32.
129 See, in particular, common art. 3, 1949 Geneva Conventions; art. 81, 1977 Additional Protocol I; Veuthey, above note, 332–4. With respect to the ICRC’s functions on behalf of interned enemy civilians or other protected persons; see arts. 41, 78, 132–4, Fourth Geneva Convention (1949); art. 75, Additional Protocol 1; arts. 4–6, Additional Protocol 2.
132 See Bakwesegha, C. J., ‘The Role of the Organization of African Unity in conflict Prevention, Management and Resolution’, 7 IJRL Special Issue—Summer 1995 207; Oloka-Onyango, J., ‘The Place and Role of the OAU Bureau for Refugees in the African Refugee Crisis’, 6 IJRL 34 (1994).
133 For text, see below, Annexe 2, No. 1.
134 The 1992 appointment of a CSCE High Commissioner for National Minorities is perhaps the most evident illustration of regional concern and intention to act.
135 Principle IX of the Declaration on Principles guiding Relations between Participating States, Helsinki Final Act, 1 Aug. 1975, declared: ‘The participating States will develop their co-operation with one another and with all States in all fields in accordance with the purposes and principles of the United Nations … ’ CSCE and OSCE texts can be found in Brownlie & Goodwin-Gill, Basic Documents on Human Rights, 817ff.
136 Conference on Security and Co-operation in Europe (CSCE): Concluding Document from the Vienna Meeting (4 Nov. 1986—17 Jan. 1987). The Concluding Document specifically identified (a) general principles, including human rights, freedom of movement and repatriation of refugees; (b) cooperation on, among other areas, migrant workers; (c) cooperation in humanitarian and other fields, including human contacts and the freedom to leave and to return; and (d) the human dimension—human rights, human contacts and other humanitarian issues.
137 The participating States reaffirmed ‘that the protection and promotion of the rights of migrant workers have their human dimension’. They are the concern of all, and as such should be addressed within the CSCE process: CSCE: Document of the Copenhagen Meeting of the Conference on the Human Dimension: 29 Jun. 1990. See arts. (9.5), (11), (22).
138 Ibid., art. (20). significantly, at the Moscow Meeting, it was accepted that a participating State may request a CSCE mission ‘to address or contribute to the resolution of questions in its territory relating to the human dimension of the CSCE’.
140 ECOSOC res. 1980/43, 23 Jul. 1980. Amnesty International, the Anti-Slavery Society, the Minority Rights Group and the International Commission of Jurists are typical of those NGOs whose activities can be called ‘protection’. The international role of NGOs in the human rights field has been confirmed and developed, among others, through the mechanism of consultative status with ECOSOC (under art. 71 of the UN Charter) and thereby also with bodies such as the former Commission on Human Rights (now replaced by the Human Rights Council).
141 Art. 1(a), Statute of Amnesty International, as amended by the 12th International Council, Louvain, Belgium, 6–9 Sept. 1979: 1980 Report, appx. 1, 383. See further, <http://www.amnesty.org>.
142 In many ways, UNHCR acts much as does a national consul, although formal recognition of this role was a divisive issue at the 1963 United Nations Conference on Consular Relations and no article thereon was agreed; see UN doc. A/CONF.25/L6, setting out UNHCR’s position. The 1967 European Convention on Consular Functions has gone some way to protect refugees against the exercise of consular functions by consuls who are nationals of the refugees’ country of origin: ETS No. 61, art. 47. Art. 2(2) of the Protocol to the same convention, moreover, expressly recognizes a protection role for the consuls of a refugee’s State of habitual residence, ‘in consultation, whenever possible, with the Office of the United Nations High Commissioner for Refugees’. For a view of the ‘collective vision’ of UNHCR lawyers and their role, see Kennedy, D., ‘International Refugee Protection’, 8 HRQ 1 (1986).
143 This in turn may cover a wide range of activities. During the height of the conflict in El Salvador in the 1980s, UNHCR ‘roving protection Officers’ patrolled the border on the Honduras side, leading asylum seekers to refugee camps, and often interceding directly with Honduran military to prevent forced return. In other situations, protection may mean maintaining a watching brief at airports and in transit areas, to try to prevent summary removals, or interceding with legal arguments to ensure that claims generally receive substantive determination. On the agency’s retreat from positions of principle during the 1990s, see Goodwin-Gill, G. S., ‘Refugee Identity and Protection’s Fading Prospect’, in Nicholson, F. & Twomey, P., Refugee Rights and Realities, (1999), 220.
144 Applicable standards, with particular regard to immigration, are analysed in more detail in Goodwin-Gill, Movement of Persons, Chs. IV and V.
145 Derogation is permitted in ‘time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’.
146 Thus, in view of the peremptory character of the rule of non-discrimination on the ground of race, measures taken against a particular class of foreign nationals determinable solely by reference to such characteristics would not be justified. See also, Committee on the Elimination of Racial Discrimination, ‘General Recommendation 30: Discrimination against Non-Citizens’, UN doc. CERD/C/64/Misc.11/rev.3; R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport [2005] 2 AC 1.
147 Art. 4(2). Cf. annexe III, Elles, International Provisions protecting the Human Rights of Non-Citizens: UN doc. E/CN.4/Sub.2/392/Rev.1, (1980), 57.
150 See Goodwin-Gill, Movement of Persons, 72–3, 85–7; and with respect to persecution, see above Ch. 3, s. 5.
151 Cf. ILO Migrant Workers (Supplementary Provisions) Convention 1975 (no. 143). Art. 1 affirms that ‘Each Member for which this Convention is in force undertakes to respect the basic human rights of all migrant workers’. The ILO Committee of Experts proposed for inclusion within this category of rights, the right to life, to protection against torture, cruel, inhuman or degrading treatment or punishment, liberty and security of the person, protection against arbitrary arrest and detention, and the right to a fair trial: Migrant Workers, report of the Committee of Experts, International Labour Conference, 66th Session, 1980, 68–9. Art. 9(1) of this same convention requires further that illegal migrant workers, whose position cannot be regularized, should receive ‘equal treatment’ for themselves and their families in respect of rights arising out of past employment in matters of pay, social security, etc. See also Goodwin-Gill, G. S., ‘International Law and Human Rights: Trends concerning International Migrants and Refugees’, 23 Int. Mig. Rev. 526 (1989); ‘Migration: International Law and Human Rights’, in Ghosh, B., ed., Managing Migration, (2000), 160.
152 Summary reports on the risks and injuries faced by refugees are included in UNHCR’s annual ‘Notes’ on International Protection, submitted each year to the Executive Committee, and in UNHCR’s reports to the Economic and Social Council.
153 Executive Committee Conclusion No. 22 (1981), Report of the 32nd Session, UN doc. A/AC.96/601, para. 57(2); also UNGA res. 36/125, 14 Dec. 1981.
154 With respect to military attacks on refugee camps and settlements, see Ch. 9, s. 1.3.
155 The Executive Committee was somewhat more peremptory, however, in its statement on cooperation with UNHCR: Executive Committee Conclusion No. 22 (1981), Ch. III.
156 On ‘temporary protection’, see above, Ch. 6, s. 6.
157 McNair, The Law of Treaties, (1961), 78–9; see also Brownlie, I., Principles of Public International Law, (6th edn., 2003), 34–5; Brownlie, I., System of the Law of Nations: State Responsibility (Part I), (1983), 241–76; Treatment of Polish Nationals in Danzig, PCIJ ser. A/B no. 44 at 24; Greco-Bulgarian Communities, PCIJ, ser. B, no. 17, 32; Free Zones, PCIJ ser. A, no. 24, 12; ser. A/B, no. 46, 167; art. 27, 1969 Vienna Convention on the Law of Treaties; Advisory Opinion, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, ICJ Rep., (1988), 12.
158 The International Court has stressed that failure to enact legislation necessary to ensure fulfilment of international obligations will not relieve a State of responsibility; see Exchange of Greek and Turkish Populations, PCIJ ser. B, no. 10, 20.
159 Crawford, J., The International Law Commission’s Articles on State Responsibility, (2002), art. 12, Commentary, para. 11, 129–30.
160 P-M-. Dupuy, ‘Reviewing the Difficulties of Codification: On Ago’s Classification of obligations of means and obligations of result in relation to State responsibility’, 10 EJIL 371–86 (1999), 375; thus, the doctor’s duty is to treat the patient to the standard required of doctors, but not specifically to cure.
161 Crawford, J., ‘Second Report on State Responsibility’, UN doc. A/CN.4/498, 17 Mar. 1999, para. 57, cited by Dupuy, above note, 378.
162 Dupuy, above n. 160, 379.
164 See also the discussion in Crawford, ‘Second Report on State Responsibility’, above n. 161, paras. 69–76.
167 Text annexed to UNGA res. 2200(XXI), 16 Dec. 1966. Some States have made reservations to this article, on the basis of its inconsistency with the freedom of expression recognized in art. 19. See Multilateral Treaties deposited with the Secretary-General: Status as at 31 December 2005: UN doc. ST/LEG/SER.E/24/ (2006), recording reservations by Australia, Belgium, Denmark, Finland, Iceland, Ireland, Luxembourg, Malta, Netherlands, New Zealand, Norway, Sweden, Switzerland (withdrawn, 1995), United Kingdom, and the United States.
168 United States Diplomatic and Consular Staff in Tehran, (USA v. Iran), ICJ Rep., (1980), 3 at 30–1.
169 See also art. 24, ILO Constitution, whereby every Member State ‘binds itself effectively to observe within its jurisdiction any Convention to which it is a party’; 1949 Geneva Conventions, common art. 1: ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’
170 The ILC invoked particularly clear statements of the principle submitted by Poland and Switzerland to the Preparatory Committee of the 1930 Hague Conference for the Codification of International Law; cited in Yearbook of the ILC (1977), ii, 23.
171 Art. 2(2) ICCPR66; See also, OAS Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural (Protocol of San Salvador, 14 Nov. 1988), art. 2: ‘If the exercise of the rights set forth in this Protocol is not already guaranteed by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Protocol, such legislative or other measures as may be necessary for making those rights a reality’, 28 ILM 156 (1989).
173 See generally, Lauterpacht, H., The Development of International Law by the International Court, (1958) 257, 282; art. 31(1), 1969 Vienna Convention on the Law of Treaties; McNair, The Law of Treaties, (1961) 540–1.
174 See Tolls on the Panama Canal (1911–12): Hackworth, Digest, vi, 59 (views of the United States); German Interests in Polish Upper Silesia (Merits), PCIJ (1926) Ser. A, no. 7, 19. The Permanent Court’s reference in the German Settlers in Poland case to the necessity for ‘ … equality in fact … as well as ostensible legal equality in the sense of absence of discrimination in the words of the law’: PCIJ (1923) Ser. B, no. 6, 24, is founded on an equivalent principle. See further Yearbook of the ILC (1977), ii, 23–7.
175 Ireland v. United Kingdom (1978) 2 EHRR 25, paras. 236ff. Art. 1 ECHR50 provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined … ’ Cf. Abdulaziz, Cabales and Balkandali v. United Kingdom, (1985) 7 EHRR 471, where the European Court found, among others, a violation of art. 13 (requiring an effective remedy for everyone whose rights and freedoms are violated), in a case in which discrimination on the ground of sex was the result of norms incompatible in this respect with the European Convention. Since the Convention was not then incorporated into UK law, there could be no ‘effective remedy’ (paras. 92, 93); see also the reservations expressed by Judge Bernhardt on this point in a concurring opinion.
176 The local remedies rule is firmly based in general international law, and also figures in human rights instruments; see, for example, art. 26, ECHR50; arts. 11(3), 14(7)(a) ICERD66; art. 41(1)(c) ICCPR66 and art. 5(2)(b), Optional Protocol thereto.
177 One expert noted that the United Kingdom had no written constitution and that the Covenant was not part of its internal legal order; if there were no laws, he wondered how the Committee could determine the degree of compliance with the Covenant: Mr Movchan, expert from the Soviet Union: UN doc. CCPR/C/SR.147, paras. 8, 9; a more lively account appears in United Nations press releases HR/1792-4, 25–6 Apr. 1979. At the time, the Soviet Union figured among those States which, despite the apparently express requirement of art. V of the Genocide Convention, had not found it necessary to enact specific legislation: Ruhashyankiko, Study of the Question of the Prevention and Punishment of the Crime of Genocide, (1978): UN doc. E/CN.4/Sub. 2/416, para. 501. Another expert believed that art. 2(2) required the adoption of specific measures and that it was not sufficient to state that existing laws were consonant with the Covenant: Mr Sadi, expert from Jordan: UN doc. CCPR/C/SR.147, para. 13.
178 Mr Richard (United Kingdom): UN doc. CCPR/C/SR.147, para. 18 and SR.149, para. 18; also Mr Cairncross (United Kingdom): ibid., SR.147, para. 32.
180 392 HL Deb. cols. 799–819 (22 May 1978). The debate arose out of a UNHCR note to the British government proposing various reforms, in particular, that ‘all those provisions of the 1951 Convention and the 1967 Protocol which are not provided for in the existing law’, should be specifically incorporated; and that there should be established ‘a formal procedure for the determination of refugee status by an independent body’ in accordance with UNHCR Executive Committee recommendations: ibid., cols. 815–6 (Lord Wells-Pestell).
181 967 HC Deb. col. 1376 (Mr Raison). A similar argument was stated the previous year in the Executive Committee by the UK representative, Mr Gould, who noted that ‘the States Parties to the 1951 Convention and the 1967 Protocol were under a duty to comply with those instruments and it was entirely for them to decide whether the provisions of those texts should for that purpose be incorporated in their national law’: UN doc. A/AC.96/SR.302, para. 17, commenting on UN doc. A/AC.96/555, para. 6; also UN doc. A/AC.96/553, paras. 517–18.
184 That the situation of refugees and asylum seekers in the United Kingdom continued to be unsatisfactory may be inferred from the enactment of the Asylum and Immigration Appeal Act 1993, and from a comparison of its provisions and the latest relevant immigration rules with those prevailing formerly.
185 For recent judicial views, see the Roma Rights case [2005] 2 AC 1, paras. 7, 40–3, 50; see generally, Stevens, D., UK Asylum Law and Policy: Historical and Contemporary Perspectives, (2004).
186 Similar considerations may apply to other human rights instruments that have an impact on State powers to expel or refuse admission to non-nationals, such as art. 3 CAT84; or art. 7 ICCPR66. States are beginning to appreciate the necessity to ensure that such issues are accommodated in appropriate decision-making procedures; see, for example, the Canadian Immigration and Refugee Protection Act 2001.
187 The State again benefits from choice of means, but the standard of effective implementation itself will be affected by the practice of other States and, so far as they reflect consensus, the recommendations of bodies such as the UNHCR Executive Committee.
188 See above, Ch. 7, s. 5.4.
189 Nuclear Tests (Australia v. France) Case, ICJ Rep., (1974), 253, 268, para. 46; see also Case Concerning Border and Transborder Armed Actions, ICJ Rep., (1988), 105, para. 94; Cameroon v. Nigeria, Preliminary Objections, Judgment, ICJ Rep., (1998), para. 38. For background, see O’Connor, J. F., Good Faith in International Law, (1991). O’Connor notes: ‘The elaboration of the concept of bona fides in Roman law as involving a legal obligation to do what a decent, fair and conscientious man would do in particular circumstances contributed very largely to the association of good faith, in a wider ethical sense, with pacta sunt servanda. In relation to keeping promises and agreements, good faith acquired the meaning of not only the obligation to observe literally the undertakings given, but also the advertence to the real intentions of the parties or to the “spirit” of the agreement.’ Ibid., 39.
190 See Simma, B., The United Nations Charter: A Commentary, (2nd edn., 2004), 91–101. See also, 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by consensus in UNGA res. 2625 (XXV), 24 Oct. 1970, para. 3.
191 Virally, M., ‘Review Essay: Good Faith in Public International Law’, 77 AJIL 130–4, 133 (1983). See also Rosenne, S., Developments in the Law of Treaties 1945–1986, (1989), 135–6: ‘Its normative content is to be distinguished from the role of good faith against the broader background of international relations … Without denying … that good faith, as a concept, is also one of public and of private morality, the view that it is only a moral or a metaphysical concept is one that cannot be entertained … ’
192 Certain Norwegian Loans, ICJ Rep., (1957), 53. See also, Lauterpacht, H., The Development of International Law by the International Court of Justice, (1958), 163; Rosenne, S., Developments in the Law of Treaties, 1945–1986, (1989), 139–40.
193 Fitzmaurice, G., ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law’, 27 BYIL 1, 12–13 (1950).
194 Lord McNair, The Law of Treaties, (1961), 540, 550: ‘A State may take certain action or be responsible for certain inaction, which, though not in form a breach of a treaty, is such that its effect will be equivalent to a breach of treaty; in such cases, a tribunal demands good faith and seeks for the reality rather than the appearance.’ Among various examples, he suggests that, ‘the making of regulations by one party which in substance destroyed or frustrated the right of the other party would be a breach of good faith and of the treaty’.
196 UNRIAA, vol. XI, 167, 188 (1910), emphasis in original. See also, Rights of US Nationals in Morocco, ICJ Rep., 1952, 212.
197 In R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport [2005] 2 AC 1, for example, the Court was of the view that the principle of good faith could not ‘create’ an international obligation; the extent to which good faith nevertheless has a normative impact on discretion or State action in otherwise unregulated areas remains open. Cf. Byers, M., ‘Abuse of Rights: An Old Principle, A New Principle, A new Age’, 47 McGill, L. J. 389 (2001–02).
198 See the Roma Rights case, above note; and further, Goodwin-Gill, G. S., ‘State Responsibility and the “Good Faith” Obligation in International Law’, in Fitzmaurice, M. & Sarooshi, D., eds., Issues of State Responsibility before International Judicial Institutions, (2004), 75.
199 See League Council resolution, 22 Apr. 1923: O.J., 1923, 604, quoted in Weis, P., Nationality and Statelessness in International Law, (2nd edn., 1979), 20. Administering powers did not acquire sovereignty over the territories in question; see per Judge McNair, South West Africa Case, ICJ Rep., (1950), 128, 150.
200 Mandate citizenship was regulated by the Palestinian Citizenship Order 1925–41, S.R. & O., 1925, No. 25.
201 See R. v. Ketter [1940] 1KB 787, where it was held that the appellant, a native of Palestine born when that territory was under Turkish sovereignty, but holding a passport marked ‘British Passport—Palestine’, had not become a British subject by virtue of art. 30 of the Treaty of Lausanne of 24 Jul. 1923 (UKTS, No. 16/1923), or under the terms of the Mandate agreement of 24 Jul. 1922, since Palestine was not transferred to and, consequently, was not annexed by Great Britain by either Treaty or Mandate.
202 Weis, Nationality and Statelessness, above n. 199, 18–20, 22.
203 See Takkenberg, L., The Status of Palestinian Refugees in International Law, (1998), 180, n. 35, citing a copy of a passport on file.
204 Cf. debates in the United Kingdom on the Palestine Act, cited in O’Connell, D. P., State Succession in Municipal Law and International Law, vol. 1, (1967), 128–9.
205 Nationality Decrees case, PCIJ, (1923), Ser. B, no. 4, 23–4; Schwarzenberger, G., International Law, (3rd edn., 1957), vol. I, 354; O’Connell, International Law, (2nd edn., 1970), 670; Weis, P., Nationality and Statelessness in International Law, (2nd edn., 1979), 239; Jennings & Watts, Oppenheim’s International Law, (9th edn., 1992), vol. 1, paras. 378–82.
206 Cf. O’Connell, State Succession, above n. 204, 498–9.
207 Cf. Kahane (Successor) v. Parisi and Austrian State, 5 Ann. Dig. (1929–30), No. 131, in which the tribunal regarded Romanian Jews as Romanian nationals; even though Romania withheld citizenship, it did not consider them to be stateless persons. With developments in related human rights, international law is unlikely to remain silent today.
209 Oseri v. Oseri (1953) 8 PM 76; 17 ILR 111 (1950); this decision of the Tel Aviv District Court, ostensibly based on the fact of termination of Palestinian citizenship, is likely also to have been inspired by a desire not to recognize Palestinian Arabs as citizens of Israel.
210 See A.B. v. M.B. 17 ILR 110 (1950); Zeltner J. said: ‘So long as no law has been enacted providing otherwise, my view is that every individual who, on the date of the establishment of the State of Israel, was resident in the territory which today constitutes the State of Israel, is also a national of Israel.’
211 (1952) 6 PD 897, 901; 17 ILR 111 (1950); Nakara v. Minister of the Interior (1953) 7 PD 955; 20 ILR 49. See also, Kattan, V., ‘The Nationality of Denationalized Palestinians’, 74 Nordic Journal of International Law 67–102 (2005).
215 Cf. Goodwin-Gill, G. S., International Law and the Movement of Persons between States, (1978), 4–11. Succession of States commonly links citizenship to residence, with frequent recognition of the right of option; see examples cited ibid., 7, n. 4.
216 Under s. 30(a) of the Prevention of Infiltration (Offences and Jurisdiction) Law 1954, the Minister of Defence is empowered to order the deportation of an infiltrator, defined by s. 1 as a person who has entered Israel knowingly and unlawfully, and who, at any time between 29 Nov. 1947 (the date of the UN decision to partition Palestine) and his entry was a national, resident or visitor in the Arab countries hostile to Israel, or a former Palestine citizen or resident who had left his ordinary place of residence in an area which became part of Israel. By contrast, the Jordanian Nationality Law of 4 Feb. 1954 (following a 1949 amendment of the 1928 Trans-Jordan Nationality Law) conferred citizenship on all inhabitants of the West Bank and on residents who had been Palestinian citizens before 15 May 1948, were ordinarily resident in Jordan, and not Jewish. See generally, Laws Concerning Nationality, UN Leg. Ser., 1954, 1959; also US Department of State, Country Reports on Human Rights Practices for 1987, (1988), 1205, for the view that Jordanian citizens of Palestinian origin enjoy an ‘unrestricted right to live, work, and own property’.
217 UN General Assembly res. 194 (III) recognizes this principle; moreover, the ‘international status’ of Palestinians as mandate citizens arguably entails a right of representation and protection in favour of countries of refuge, on behalf of the international community and on the basis of UN General Assembly and Security Council resolutions. In the absence of any such protection function, the attainment of the compensation and related goals established internationally would be unlikely and the relevant resolutions rendered ineffective.
218 A stateless person is defined as ‘a person who is not considered as a national by any State under the operation of its law’: art. 1, 1954 UN Convention relating to the Status of Stateless Persons: 360 UNTS 117. Cf. 1961 UN Convention on the Reduction of Statelessness: UN doc. A/CONF.9/15, Final Act, recommending that ‘persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality’. See also United Nations, A Study of Statelessness, (1949), 8–9 and generally.
219 Pending further developments in the peace process, the status of Palestine as a State in the sense of international law (having a permanent population, a defined territory, government and the capacity to enter into relations with other States, including full membership of international organizations), remains undetermined; see art. 1, 1933 Montevideo Convention on Rights and Duties of States: 165 LNTS 19; 28 AJIL Supp., (1934), 75.
220 See above, Ch. 4, s. 3.2; also, New Zealand, RSAA, Refugee Appeal No. 73873, 28 Apr. 2006; for an account of problems even in establishing statelessness, see the 2nd edition of this work, 244–6.
