14 United Nations High Commissioner for Refugees

Gudrun Gudmundsdottir

Introduction

Throughout history, people have fled their homes to escape persecution. In the aftermath of the Second World War, the international community included the right to seek and enjoy asylum in the Universal Declaration of Human Rights (Article 14). In 1950, the Office of the United Nations High Commissioner for Refugees (UNHCR) was created to protect and assist refugees, and, in 1951, the UN adopted the Convention Relating to the Status of Refugees (1951 Convention), which is the cornerstone document of refugee protection. In addition, the Protocol relating to the Status of Refugees (the 1967 Protocol) helped widen the definition of a refugee, as it lifted the time and geographic limits found in the 1951 Convention.

While the international community has generally responded swiftly and generously to refugee crises in the past, some worrying trends are emerging. Countries that once generously opened their doors to refugees have largely regressed in their commitment to protect refugees by adopting adversarial and restrictive policies. Real and perceived abuses of asylum systems, as well as irregular movements, have led to the refusal of entry to refugees and expulsion from asylum countries. Those who reach a potential country of asylum are sometimes turned away or sent back without having been able to apply for asylum.

The majority of today’s refugees are from Africa and Asia. Current refugee movements frequently take the form of mass exoduses rather than individual flights. Eighty per cent are women and children, and the causes of flight now include natural or ecological disasters and extreme poverty. As a result, many of today’s refugees do not fit the definition contained in the 1951 Convention. The latest figures available show that the number of refugees of concern to UNHCR in mid-2014 stood at 13 million refugees, up from a year earlier. A further 5.1 million registered refugees are looked after in some 60 camps in the Middle East by United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), which was set up in 1949 to care for displaced Palestinians. The refugees of concern to UNHCR are spread around the world, with half in Asia and some 28 per cent in Africa. They live in widely varying conditions, from well-established camps and collective centers to makeshift shelters or living in the open. The growing number of refugees around the world is overshadowed by the even greater numbers of internally displaced people, or IDPs, who have not crossed an international border in search of shelter and safety. As of the end of 2014, a record-breaking 38 million people were forcibly displaced within their own country by violence, up from 33.3 million for 2013. In mid-2014, the UNHCR was caring for around 26 million of the world’s IDP population at that time. Like refugees, they were forcibly displaced by conflict, generalized violence and human rights violations. UNHCR helps IDPs as part of a wider intervention by the international community. Finally, UNHCR advocates fair and efficient procedures for asylum-seekers. The terms asylum-seeker and refugee are often confused: an asylum-seeker is someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated. On average, about 1 million people seek asylum on an individual basis every year. In mid-2014, there were more than 1.2 million asylum-seekers.

Learning Outcomes

• To understand the definition of a refugees and the international agreements protecting them.
• To become acquainted with the present crises in refugee protection. To become acquainted with the work of UNHCR in India.

WHO IS A REFUGEE?

According to the 1951 Convention relating to the Status of Refugees, a refugee is someone who:

Has a well-founded fear of persecution because of his/her

— Race

— Religion

— Nationality

— Membership in a particular group, or

— Political opinion;

Is outside his/her country of origin; and

Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution.

The Office of the United Nations High Commissioner for Refugees (UNHCR)

The Office of the United Nations High Commissioner for Refugees was established on December 14, 1950, by the United Nations General Assembly to help the estimated 1 million people still uprooted after World War II to return home. Since then, the Agency has helped find durable solutions for tens of millions of refugees, and they remain its core constituency. The agency is mandated to lead and co-ordinate international action to protect refugees and resolve refugee problems worldwide. Its primary purpose is to safeguard the rights and well-being of refugees. It strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another State, with the option to return home voluntarily, integrate locally or to resettle in a third country. It also has a mandate to help stateless people and internally displaced people (IDPs).

UNHCR is led by the United Nations High Commissioner for Refugees, currently António Guterres who was elected to the post in June 2005. As head of the organization, the High Commissioner is responsible for the direction and control of UNHCR. He directs the work of UNHCR with the assistance of a Deputy High Commissioner and Assistant High Commissioners for Protection and Operations, overseeing it’s over 9,300 staff members working in 123 countries providing protection and assistance to nearly 55 million refugees, returnees, internally displaced people and stateless persons. Some 88 per cent of UNHCR staff work in the field, often in difficult and dangerous duty stations. The organization’s needs-based budget for 2015 is US$7 billion.

UNHCR works on the basis of its Statute and the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. UNHCR functions include securing legal and practical protection to refugees with and through governments, overseeing the mobilisation and co-ordination of resources for the well-being and survival of refugees and encouraging conditions in conflict zones that will allow refugees to return voluntarily to their countries of origin. The 1951 Convention is the key legal document in defining who is a refugee, refugee rights and the legal obligations of states. UNHCR also promotes international refugee agreements and monitors government compliance with international refugee law. The UNHCR’s mandate is, however, limited in its supervisory role for numerous reasons. Unlike the international system of human rights protection, there is no formal mechanism in international refugee law to receive individual or inter-state complaints; and provisions of the 1951 Refugee Convention setting out obligations for states to provide UNHCR with information and data on, inter alia, the implementation of the Convention have not been given full effect. As a consequence, there is no review of country practices that can be used to aid in ensuring states’ compliance with international standards of refugee protection.

To promote accession by states to international agreements relating to refugees and monitor government compliance with international refugee law, the Global Consultations on International Protection were launched in 2001. The Consultations are aimed at promoting improved understanding of the 1951 Convention, its strengths, limitations, and potential. The process was designed along three tracks: a) Ministerial Meetings of states parties to the Convention; b) Roundtable meetings with experts; and c) Policy formulation in the framework of the Executive Committee (ExCom). These consultations resulted in the establishment of the Agenda for Protection, a series of guidelines for UNHCR, governments and humanitarian organisations to strengthen worldwide refugee protection. The ExCom’s Standing Committee meets several times each year to advise on international protection and discuss a wide range of other issues with UNHCR and its intergovernmental and non-governmental partners. The ExCom has become the main international forum developing standards of refugee protection. The Committee is made up of 76 countries and meets every autumn in Geneva to review and approve the agency’s programmes and budgets and to advise on protection matters. ExCom sets international standards with respect to the treatment of refugees and provides a forum for wide-ranging exchanges among governments, the UNHCR and its numerous intergovernmental and non-governmental partners. ExCom’s Standing Committee meets several times each year to carry on the body’s work between plenary sessions. The conclusions of this annual intergovernmental meeting represent an important international consensus regarding refugee-related issues and carry persuasive authority as standards of refugee protection.

In the field, UNHCR staff work to protect refugees through a wide range of activities, including emergency response; relocating refugee camps away from border areas to improve safety; ensuring that refugee women have access to food distribution and social services; reuniting separated families; providing information to refugees on conditions in their home country so that they can make decisions about return; documenting a refugee’s need for resettlement to a third country of asylum; visiting detention centres; and giving advice to governments on draft refugee laws, policies and practices.

UNHCR seeks long-term and durable solutions to refugee problems by helping refugees return voluntarily to their home countries if the situation allows it; monitoring the treatment and promoting the reintegration of returnees after repatriation has taken place; helping refugees integrate in their countries of asylum; and resettling refugees to third countries when needed.

The UN Convention relating to the Status of Refugees

The 1951 Refugee Convention, as amended by the 1967 Protocol, is the most important international instrument protecting the rights of refugees. According to Article 1(a) of the Convention, a refugee is:

[A]ny person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

The 1951 Convention specifies who is a refugee (see textbox above), and what rights a refugee has. In Article 33, the principle of nonrefoulement is established. This principle forbids states to expel or return a refugee, in any manner whatsoever, to the frontiers of territories where his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. The nonrefoulement principle also encompasses non-rejection at the border and can oblige a state to accept a person on its territory. It does not oblige a state to grant the person asylum. The refugee may be expelled to another state where his/her life and freedom will not be in danger, provided that state is prepared to admit him/her. Granting of asylum may, however, be the result of nonrefoulement, if no other state is prepared to admit the refugee.

The 1951 Convention also includes ‘exclusion clauses,’ which stems from the understanding that the commission of some types of crimes justifies the exclusion of the perpetrators from the benefits of refugee status. Under Article 1(F), refugee status under the 1951 Convention does not apply to persons with regard to whom there are ‘serious reasons’ for considering they have committed the following crimes: a) Crimes against peace, war crimes and crimes against humanity; b) Serious nonpolitical acts; and c) Acts contrary to the purposes and principles of the United Nations. Thus, if one of the exclusion clauses applies, the claimant cannot be a Convention refugee, whatever the other merits of his or her claim.

Often the recognition as refugee on the basis of Article 1(A) of the 1951 Convention will coincide with the granting of asylum, according to national law. In general, asylum will not be granted if the person concerned can enjoy protection elsewhere, or if there are compelling reasons of public order not to admit her/him. Although the definition of refugee in Article 1(A) of the 1951 Convention is formulated in a general way and can, therefore, be applied broadly, it is limited by the fact that the well-founded fear of persecution must be based on the five grounds mentioned in Article 1(A). However, there can be situations in which it would be inhumane to return someone who does not fulfill the criteria for refugee status under the Refugee Convention. This can be the result of general circumstances in the country of origin such as for example, war and hunger. It can also be related to individual circumstances such as the risk of torture or cruel, inhuman or degrading treatment or punishment upon return. Granting of asylum may, therefore, imply both admission as a refugee by the 1951 Convention and permission to stay on humanitarian grounds.

In addition to the 1951 Convention and the 1967 Protocol, two regional instruments have been adopted expanding the definition found in the 1951 Convention, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) and the Cartagena Declaration on Refugees (1984).

Refugee protection and international human rights and humanitarian law

In addition to international and regional refugee Conventions, international human rights law and international humanitarian law play a significant role in guaranteeing international protection of refugees.

Article 7 International Covenant on Civil and Political Rights (ICCPR) has been interpreted to prohibit return to situations where the person might suffer torture or other cruel, inhuman and degrading treatment or punishment. Moreover, nearly all of ICCPR’s provisions apply to both citizens and non-citizens.

Article 3 Convention against Torture (CAT) provides for protection from refoulment in situations where there is a substantial risk of torture. The nonrefoulement provision under CAT is absolute. Unlike the nonrefoulement provision of the 1951 Convention, it is not linked to cases where a person fears harm on account of race, religion, nationality, membership of a particular social group, or political opinion and it does not provide for exceptions based on national security. This means that the prohibition of return applies to all persons regardless of their past criminal conduct.

The Convention on the Rights of the Child (CRC) applies to all children without discrimination, including child refugees and asylum seekers. CRC specifically stipulates that every child seeking refugee status has a right to protection and humanitarian assistance in the enjoyment of the rights set forth in the Convention, as well as other Conventions to which the state is a party.

The International Convention for the Protection of All Persons from Enforced Disappearance sets out nonrefoulement where there are substantial grounds for believing that a person would be in danger of being subjected to enforced disappearance (Article 16).

Regional human rights instruments also establish important safeguards for refugees. For example, Article 3 European Convention on Human Rights (ECHR) has been interpreted by the European Court to prohibit the return of persons where there is a risk of torture while Article 22(7) American Convention on Human Rights (ACHR) recognises ‘the right to seek and be granted asylum’ and Article 22(8) prohibits refoulment, a prohibition which is formulated in absolute terms.

In humanitarian law, Article 44 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War deals specifically with refugees and displaced persons. Moreover, the 1977 Additional Protocol provides that refugees and stateless persons are to be protected under the provisions of Parts I and III of the Fourth Geneva Convention. Notably, in October 2009, the African Union adopted the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), the first internal displacement specific convention covering an entire region. This historic document sets out obligations for states parties, the AU, and humanitarian agencies in relation to all phases of displacement.

Given the general nature of UNHCR’s supervisory role, international human rights supervisory mechanisms have also played a key role in protecting the rights of refugees and asylum seekers. Both the Committee Against Torture and the Human Rights Committee constitute crucial safeguards for refugees and asylum seekers in danger of being returned to face torture or cruel, inhuman or degrading treatment or punishment. Under its individual complaint procedure, the Committee against Torture has developed a broad jurisprudence concerning the principle of nonrefoulement under Article 3 CAT and has provided important protection to refugees and asylum seekers who risked being deported to countries where they would be exposed to torture.

The Committee on Economic, Social and Cultural Rights and the CEDAW, CRC and CERD Committees have all played an important role in refugee protection by raising issues relating to refugees when examining state reports.

The European Court has found obligations of parties to the European Convention relating to refugees and other non-nationals in a series of judgments on private and family life, the right to an effective remedy and, perhaps most importantly, the prohibition of return when there is a risk of torture.

Similarly, at the Inter-American level, the Court and, in particular, the Commission have played an important role in the protection of the human rights of refugees and other non-nationals through examination of individual cases, provisional and precautionary measures, and examination of refugee problems in the annual and country reports of the Commission.

Refugees and UNHCR’s work in India

India offers asylum to a considerable number of refugees, although it is not a signatory to the 1951 Refugee Convention. More than 200,000 refugees and asylum-seekers of various origins live in India (of whom some 30,000 are registered with UNHCR). Like many other countries in the region, India has seen a growing number of people seeking asylum in recent years, and UNHCR is of the view that this trend is likely to continue. In the absence of national asylum legislation, UNHCR conducts registration and refugee status determination (RSD) and facilitates the resettlement of vulnerable groups. The Agency cooperates with the Indian Government as well as with NGOs and other stakeholders, to protect, assist and find durable solutions for refugees and other people of concern.

Poverty is a key challenge for the majority of refugees and asylum-seekers, who may face discrimination from local communities with little understanding of refugee issues. Through partnership with the Indian Government, UNHCR aims to enhance asylum space, including by: identifying opportunities for local integration; improving livelihoods for urban refugees; ensuring the smooth voluntary return of refugees from India to Sri Lanka, and possibly Myanmar, and identifying other durable solutions for refugees from Bhutan. While the Government has adopted various approaches to deal with the refugee population, UNHCR tries to fill the gaps in terms of protection, assistance and durable solutions. It focuses on the most vulnerable, including women, children, the elderly, survivors of sexual and gender-based violence, and those with special needs. It also advocates adopting national refugee frameworks and accession to international refugee instruments.

Summary

Despite heroic efforts by the men and women working under the auspices of the UNHCR and other bodies involved with the welfare of refugees, the contemporary state of refugee protection is as dire as at any time since the Second World War, the aftermath of which was the impetus for the establishment of the UNHCR. In part, this is because of the inadequacy of the international instruments adopted to deal with the question of refugees and the gaps which are evident in dealing with large-scale migrations, not necessarily falling under the initial purview of refugee protection. It is clear that serious re-thinking must take place to address the ever-increasing challenges faced by society as a whole, not only by refugees and asylum seekers.

The editors are indebted to the authors of the Human Rights Reference Handbook (5th edition, Reykjavik, 2010) for permission to use their work as a basis for various modules of this paper. The updating of information and final presentation is, however, our responsibility alone. (The publishers are the Icelandic Human Rights Centre, Reykjavik, Iceland and the University for Peace, Ciudad Colon, Costa Rica. The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.)

Reference

• Human Rights Reference Handbook (5th edition, Reykjavik, 2010) The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.