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The Development of International Refugee Protection through the Practice of the UN Security Council

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Christiane Ahlborn

Introduction

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  • 1 ‘Statement to the Security Council by Soren Jessen-Petersen’, UNHCR, New York (21 May 1997), repri (...)

“We in UNHCR look to the Security Council as the center stage of a system of global governance that preserves the security of persons as well as of states – as these two principles are increasingly indivisible. We insist on our humanitarian impartiality. But we also need [its] guidance and support in order to safeguard the integrity and effectiveness of humanitarian action.”1

  • 2 1951 Geneva Convention Relating to the Status of Refugees, 189 UNTS 150 (22 Apr. 1954) [hereinafte (...)
  • 3   UN Doc. S/RES/361 (30 Aug. 1974), para. 4.
  • 4   Kourala observes that “[w]ith the end of the of the Cold War, international protection concerns i (...)

1Since the end of the Cold War the regime governing the international protection of refugees has faced increasing and complex challenges going well beyond the institutional capacities of the United Nations High Commissioner for Refugees (UNHCR) and the legal guarantees of the 1951 Convention Relating to the Status of Refugees at the core of this protection regime.2 The shift in geographic focus from East-West to North-South has been accompanied by massive refugee flows and a steadily mounting number of internally displaced persons (IDPs), exacerbating previously existing legal and operational dilemmas. Moreover, refugee movements have become increasingly politicized and militarized with a dangerous mix of armed elements and vulnerable populations such as women and children. As a result humanitarian access to displaced persons has met serious impediments. Attacks on refugee and IDP camps as well as humanitarian personnel are nowadays the norm rather than the exception. Indeed, displacement is often no longer considered a by-product of armed conflict but rather its objective. Insistence on the right to return of the defeated group, individually or collectively, may accordingly reverse the very goal of the resort to force. It is in this context that the Security Council first linked the problem of mass exodus with determinations of a threat to international peace and security under Article 39 of the UN Charter in the early 1990s. It thereby set the stage for addressing different aspects of international refugee protection, often in close cooperation with UNHCR and in addition to other relevant UN organs and agencies. Although the Council had previously pronounced itself on international refugee protection as in the right to return of displaced persons in Cyprus,3 such references remained isolated incidents in comparison to the Council’s post-Cold War activism.4

  • 5   See V. Gowlland-Debbas, ‘The Link Between Security and International Protection of Refugees and M (...)

2The linkage between international peace and security and refugee flows is a welcomed occurrence for the development of the regime of international refugee protection, which is an area of law that has not experienced substantive codifications at the universal level since the 1951 Convention. In resolutions relating to the Kurdish region of Iraq, Haiti, Rwanda, Kosovo, and Sudan, the Security Council has characterized grave violations of human rights and international humanitarian law, resulting in mass exodus or refugee flows, to constitute threats to international peace and security, even in the context of intra-State conflicts. Following such determinations, the Security Council has taken enforcement actions to end these violations of international law, including sanctions and authorizations for the use of force by States and regional organizations, mandates for robust peace operations to protect humanitarian activities in countries of origin and complex peace-building missions with far-reaching administrative powers.5 Moreover, the Council has continuously promoted the right to return of refugees in order to restore international peace and security as a precondition for the repatriation of refugees and internally displaced persons, as illustrated by the cases of Cambodia, Bosnia-Herzegovina and Sudan.

  • 6   See M. Weiner, ‘The Clash of Norms: Dilemmas in Refugee Policies’, (1998) 11 Journal of Refugee S (...)
  • 7   UN Doc. S/RES/1373 (28 Sept. 2001).

3At the same time, the Security Council’s actions in the General Assembly’s traditional domain of international refugee protection, and its interaction with UNHCR, have encountered serious criticism. Beginning with the creation of so-called safe havens in Iraq, Bosnia and Rwanda, the Security Council has been accused of prioritizing State security over the security of IDPs and refugees by preventing persons at risk from seeking asylum elsewhere.6 Moreover, comprehensive sanctions regimes, intended to induce compliance with international law, have had a harmful humanitarian impact on the situation of refugees and displaced persons at different stages of their displacement process. The Security Council has also been strongly criticized for making unwarranted links between refugee status and terrorism in its counter-terrorism resolutions, in particular in resolution 1373, which may have contributed to the erosion of established refugee protection standards.7

  • 8   See, for instance, T.D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Securi (...)
  • 9 Various scholars have commented on this “legislative” development in Security Council resolutions. (...)
  • 10   See R.B. Lillich, ‘The Role of the UN Security Council in Protecting Human Rights in Crisis Situa (...)
  • 11   See, for instance, J. McAdam, Complementary Protection in International Refugee Law (2006).
  • 12   International humanitarian law and its codification were originally not included in the purposes (...)

4The UN Security Council has thus exerted a notable but ambivalent influence on international refugee law and policy; however, this influence has never been treated comprehensively by scholarly writings on the Security Council and international refugee protection. The relationship between the Security Council and general international law has mostly been analyzed from the perspective of the potential of
the Security Council to abide by international law.8 Increasing recognition of the Council’s law enforcement powers has been supplemented by discussions on its potential role as a law-maker.9 With the exception of resolution 1373, Security Council resolutions with explicit or implicit references to refugees or displaced persons have been primarily considered in respect of collective action under Chapter VII of the UN Charter in cases of serious violations of international human rights and humanitarian law.10 This is not to say that other fields of international law are irrelevant for international refugee protection. In contrast to refugee law, human rights law has undergone a radical evolution after the Second World War and has also contributed substantively to the development of the contemporary refugee protection regime, including situations of internal and mass displacement.11 The same observation can be made with regard to international humanitarian law as the principal source of law applicable during armed conflict, which is not only frequently the reason for massive displacement but it is also related to the Security Council’s primary area of responsibility: peace and security.12 While all these fields of law have gained in importance in the Security Council’s resolutions, it is international refugee law that has received very little scholarly attention.

  • 13   UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (7 Sept. 1994), at 8, para. 12.
  • 14 Ibid., at 8, paras. 24 and 25. The 1994 Note on International Protection further emphasized that “c (...)

5In light of this lack of scholarly consideration, this paper seeks to shed light on the ambivalent influence of the Security Council’s practice on the development of international refugee protection. For this purpose, international refugee protection is defined as the totality of activities from “securing admission, asylum, and respect for basic human rights, including the principle of non-refoulement, [to] the attainment of a durable solution, ideally through the restoration of protection by the refugee’s own country”.13 Accordingly, the term “refugee” is considered in its broad and inclusive meaning with emphasis on the element of coercion and the continuum of the displacement process. It includes other categories relevant to the Council’s practice such as persons at risk of displacement, internally displaced persons and returnees, but excludes voluntary forms of migration.14 Part one of this paper will discuss the normative competence of the Security Council over international refugee protection by considering the premises and institutional consequences of the Council’s gradual inclusion into the existing international protection regime. On this basis, part two will analyze to what extent the Security Council has strengthened the system of international refugee protection during the different stages of displacement from the elimination of root causes to the search for durable solutions to the refugee problem. Part three will then contrast the findings of this analysis with the possible erosion of refugee protection standards through the Security Council’s peace operations and sanctions regimes. Despite certain negative repercussions due to the inherently political nature of its actions, it will be argued that the Security Council has made a considerable contribution to the strengthening of international refugee protection by enforcing, developing and even creating norms that place the individual at the center of the international security agenda.

Notes

1 ‘Statement to the Security Council by Soren Jessen-Petersen’, UNHCR, New York (21 May 1997), reprinted in (1998) 17 Refugee Survey Quarterly 65, at 68 (emphasis added).

2 1951 Geneva Convention Relating to the Status of Refugees, 189 UNTS 150 (22 Apr. 1954) [hereinafter: 1951 1967 Convention], as modified by the Protocol Relating to the Status of Refugees, 606 UNTS 267 (4 Oct. 1967) [hereinafter: 1967 Protocol]. For reasons of simplification, this paper may only refer to the 1951 Convention. This reference is meant to include the 1967 Protocol. The 1967 Protocol incorporates the 1951 Convention and removes the temporal and geographic limitations of the Convention. Most states (120) are parties to both instruments. Madagascar, Monaco, Saint Vincent and the Grenadines as well as the Solomon Islands only ratified the 1951 Convention. Cape Verde, Swaziland, the United States and Venezuela are only parties to the 1967 Protocol.

3   UN Doc. S/RES/361 (30 Aug. 1974), para. 4.

4   Kourala observes that “[w]ith the end of the of the Cold War, international protection concerns increasingly converge with action contemplated or taken by the Council under Chapter VII, such as decisions on sanctions.” P. Kourula, ‘International Protection of Refugees and Sanctions: Humanizing the Blunt Instrument’, (1997) 9 International Journal of Refugee Law 255, at 255. See more generally G. Loescher, ‘Refugees as Grounds for International Action’, in E. Newman and J. van Selm (eds.), Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003), 31 at 36.

5   See V. Gowlland-Debbas, ‘The Link Between Security and International Protection of Refugees and Migrants’, in V. Chetail (ed.), Mondialisation, Migration et Droits de l'Homme: le Droit International en Question/ Globalization, Migration and Human Rights: International Law under Review (2007), 281 at 290.

6   See M. Weiner, ‘The Clash of Norms: Dilemmas in Refugee Policies’, (1998) 11 Journal of Refugee Studies 433, at 339.

7   UN Doc. S/RES/1373 (28 Sept. 2001).

8   See, for instance, T.D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers Under Chapter VII of the Charter’, (1995) 26 Netherlands Yearbook of International Law 33; D. Akande, ‘The International Court of Justice and the Security Council: Is there Room as Judicial Control of Decisions of the Political Organs of the United Nations?’, (1997) 46 International and Comparative Law Quarterly 309; A. Reinisch, ‘Developing Human Rights and Humanitarian law Accountability of the Security Council for the Imposition of Economic Sanctions’, (2001) 95 AJIL 851; J. Alvarez, ‘Judging the Security Council’, (1996) 90 AJIL 1; G. Arrangio-Ruiz, ‘On the Security Council’s Law-Making’, (2000) 83 Rivista di Diretto Internazionale 609; I. Brownlie, ‘The Decisions of Political Organs of the United Nations and the Rule of Law’, in R.St.J. Macdonald (ed.), Essays in Honor of Wang Tieya (1994), 91; B. Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lesssons From Lockerbie?’, (1999) 10 EJIL 517; M.W. Reisman and D.L. Stevick, ‘The Applicability of International Law Standards to United Nations Economic Sanctions Programmes’, (1998) 9 EJIL 86; G.H. Oosthuizen, ‘Playing the Devil’s Advocate: The Security Coucil is Unbound by Law’, (1999) LJIL 549; Bardo Fassbender, ‘Review Essay: Quis judicabit? The Security Council, its Powers and its Legal Control’, (2000) 11 EJIL 219. See also generally E. de Wet, The Chapter VII Powers of the United Nations Security Council (2004), discussing the limits to the powers of the Security Council, inter alia, by international human rights and humanitarian law.

9 Various scholars have commented on this “legislative” development in Security Council resolutions. See, for instance, S. Talmon, ‘The Security Council as World Legislature’, (2005) 99 AJIL 175; J. Alvarez, ‘Hegemonic International Law Revisited’, (2003) 97 AJIL 873; P. Szasz, ‘The Security Council Starts Legislating’, (2002) 96 AJIL 901, at 901; see more generally, J. Alvarez, International Organizations as Law-Makers (2006), 184; G. Abi-Saab, ‘The Security Council as Legislator and as Executive in its Fights Against Terrorism and Against Proliferation of Weapons of Mass Destruction: The Question of Legitimacy’, in R. Wolfrum and V. Röben (eds.), Legitimacy in International Law (2008), 109.

10   See R.B. Lillich, ‘The Role of the UN Security Council in Protecting Human Rights in Crisis Situations: UN Humanitarian Intervention in the Postcold War World’, (1995) 3 Tulane Journal of International and Comparative Law 1; C.J. Le Mon and R.S. Taylor, ‘Security Council Action in the Name of Human Rights: From Rhodesia to the Congo’, (2004) 10 U.C. Davis Journal of International Law & Policy 198. I. Österdahl, ‘The Exception as the Rule: Lawmaking on Force and Human Rights by the UN Security Council’, (2005) 10 Journal of Conflict & Security Law 1, criticizing A. Bianchi ‘Ad-Hocism and the Rule of Law’, (2002) 13 EJIL 263. For a more specific discussion on refugees see A. Dowty and G. Loescher, ‘Refugee Flows as Grounds for International Action’, (1996) 21 International Security 43; P. Freeman, ‘International Intervention to Combat the Explosion of Refugees and Internally Displaced Persons’, (1995) 9 Georgetown Immigration Law Journal 565.

11   See, for instance, J. McAdam, Complementary Protection in International Refugee Law (2006).

12   International humanitarian law and its codification were originally not included in the purposes of the United Nations in order not to undermine the so-called ius contra bellum. This legal doctrine prevailed after the Second World War and was based on the assumption that the establishment of the UN had led to the abolishment of war. See generally R. Kolb, ‘Aspects historiques de la relation entre le droit international humanitaire et les droits de l’homme’, (1999) 37 CYIL 57.

13   UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (7 Sept. 1994), at 8, para. 12.

14 Ibid., at 8, paras. 24 and 25. The 1994 Note on International Protection further emphasized that “coerced displacement, whether within or across national borders, should be seen as the consequence and symptom of a broader problem involving the absence or failure of national protection, a problem which should be addressed globally rather than piecemeal.” (Ibid., at 29, para. 64).

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