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

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Christiane Ahlborn

3. Normative Erosion of International Refugee Protection: Back to State Security

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1Since the early 1990s the Security Council has used its enforcement measures under Chapter VII to strengthen different aspects of international refugee protection. It has addressed the root causes of forced displacement, supported the assistance to and protection of refugees and IDPs in on-going conflict situations and promoted durable solutions. However, apart from these positive normative effects on the security of refugees and displaced persons, the Security Council has also been criticized for fuelling a backward trend to State security concerns, as illustrated by increasingly restrictive immigration and asylum policies, in particular after the attacks of 11 September 2001. By prioritizing these State security objectives over humanitarian considerations, the Security Council has been accused of eroding or even violating established protection standards through its inherently political actions.

  • 310 In Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion of 28 May 1948, (...)
  • 311 Gowlland-Debbas, supra note 83, at 201.
  • 312 These legal consequences would result from a violation of Article 25 of the UN Charter as occasion (...)

2Any such violation of norms of international refugee protection evidently presupposes the existence of limits of the Security Council’s enforcement powers.310 Although it is still contested which rules of general international law apply to Security Council actions, the Council is at least bound by the principles and purposes of the UN Charter which are reflected in internal UN documents such as the UNHCR Statute but also in treaties that were concluded under the auspices of the United Nations such as the 1951 Convention and the 1967 Protocol. As Gowlland-Debbas observes in this context, “[t]andis que le but principal de la Convention est de conférer aux réfugiés un statut dans le territoire des parties, elle est en même temps étroitement liée aux buts et principes de la Charte et à la Déclaration universelle des droits de l’homme.”311Leaving aside the controversial question of judicial review by the ICJ, the only option a Member State has in case of an unlawful Security Council resolution is to challenge the legality of this binding decision and unilaterally decide not to comply with it – conduct that would in turn have legal consequences for the State concerned.312

3Even below the level of a clearly established violation of international law, however, the Security Council’s practice may weaken refugee protection standards. By using its powers under Chapter VII of the UN Charter, the Security Council may temporarily suspend norms and treaty obligations related to international refugee protection or subordinate them to the enforcement of other rules of international law. Repeated action may then lead to a permanent erosion of normative standards. Such practices will have a particularly negative impact on norms of customary international law whose formation or consolidation may have previously benefited from the Security Council’s actions, for instance, in the context of the protection of civilians. The following discussion will therefore examine the principal measures by which the Security Council has addressed international refugee protection, peace operations and economic sanctions, in order to assess the erosion of international protection standards in view of the Security Council’s recent initiatives to address human security alongside traditional security considerations.

3.1 Erosion Through UN Peace Operations

  • 313 See Newland and Meyers, supra note 260, at 17.
  • 314 In the preamble to UN Doc. S/RES/941 (23 Sept. 1994), for instance the Security Council took note (...)
  • 315 J. Grombach Wagner, ‘An IHL/ICRC Perspective on Humanitarian Space’, (2005) 32 Humanitarian Practi (...)

4As humanitarian organizations such as UNHCR have become increasingly involved in countries of origin and zones of active conflict,313 they have witnessed massive violations of human rights and international humanitarian law, have seen their assistance being manipulated for military strategies and their refugee camps being heavily militarized.314 The humanitarian space, first defined by the President of Médecins Sans Frontières as a “space of freedom in which we [humanitarian organizations] are free to evaluate needs, free to monitor the distribution and use of relief goods, and free to have a dialogue with the people”,315 has shrunk over the past decades for a variety of reasons linked to an increasingly complex political and security situation. As a result, UNHCR has become more and more dependent on the guidance of the Security Council and the (military) support of UN peace operations when providing in-country protection and assistance to refugees and displaced persons. Although the necessity of this interaction has been widely acknowledged and even welcomed, it is argued that the close cooperation between UNHCR with its humanitarian, non-political mandate and the politically authorized peace operations has also had negative normative effects, in particular with regard to the creation of safe areas and the erosion of established principles of humanitarian action.

3.1.1 Peace Operations and the Creation of Safe Areas: The Right to Leave and to Remain?

  • 316   On the “right to leave” see supra notes 263 and 264.
  • 317   See B.S. Chimni, ‘The Incarnation of Victims: Deconstructing Safety Zones’, in N. Al-Naumi and R. (...)
  • 318   See Phuong, supra note, at 137.
  • 319   See C. Helton, The Price of Indifference – Refugees and Humanitarian Action in the New Century (2 (...)
  • 320   The idea for the establishment of safe areas originated in international humanitarian law which p (...)
  • 321 As Goodwin-Gill observes further: “Turkey’s decision to close its border to Kurdish refugees, and (...)
  • 322 See J. Allain, ‘The Jus Cogens Nature of Non-refoulement’, (2002) 13 International Journal of Refu (...)

5Although the Security Council has strengthened the right to return in various resolutions, its actions leading to the establishment of so-called “safe havens” in zones of conflict have rather negatively influenced the normative content of the correlative right to leave.316 Chimni describes these safe havens or safe areas as a “clearly demarcated space in which individuals fleeing danger can seek safety within their own country”.317 The creation of safe areas has as its aim not only to protect civilians who already live in these areas, but also to provide a temporary refuge.318 It has thus been argued that these safe areas find their origin in the concept of “preventive protection” and a “right to remain” as an alternative to the right to leave and seek asylum, especially in the wake of the adoption of Security Council resolution 688.319 Although this resolution did not explicitly mention the creation of safe areas, it did have a strong humanitarian focus on the civilian population that led the United States, France, and Great Britain to send military forces without the consent of the government of Iraq.320 However, given Turkey’s pronounced interest in preventing any refugee flows into its territory, the establishment of safe areas through this multinational force has been questioned for its true intention: the protection of State interests of potential asylum countries or of the physical safety of internally displaced persons. Goodwin-Gill, for instance, notes that resolution 688 remains “ambiguous” and “controversial”,321 in part, because it implicitly sanctioned Turkey’s policy and intended to work around it. Others have even claimed that the willingness of the international community to acquiesce to Turkey’s closed policy through the establishment of safe havens challenged the principle of non-rejection at the frontier, as an element of the norm of non-refoulement.322

  • 323   UN Doc. S/RES/819 (16 Apr. 1993) and UN Doc. S/RES/824 (6 May 1993).
  • 324   UN Doc. S/RES/929 (22 Jun. 1994), para. 2.
  • 325   See Landgren, supra note 320, at 448.
  • 326   See J. Hathaway and A. Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Col (...)
  • 327 Ibid.

6The concept of safe areas was again and more officially applied in 1993 when the Security Council, acting under Chapter VII, passed resolution 819 setting up a safe area in Srebrenica. Resolution 824 extended the concept to the towns of Zepa, Tuzla, Sarajevo, Gorzade, and Bihac.323 Like in Iraq, the safe havens in Bosnia were created as a direct consequence of a third party’s refusal to accept Bosnian refugees, without the consent of the parties to the conflict. Due to a lack of military protection, two of the six allegedly safe havens eventually fell to the Serbs, and the entire male population of Srebrenica was massacred without any reaction from UN Protection Force (UNPROFOR) mandated to protect these areas. At the same time, the Security Council also established safe areas in Rwanda by authorizing a French intervention force to “contribute to the security and the protection of displaced persons, refugees and civilians at risk”,324 including through the establishment and maintenance of secure humanitarian areas.325 Consequently, France blocked the application of Rwandans’ asylum demands on the basis that they were being protected inside their own country while thousands of IDPs were killed in context of the Rwandan genocide.326 By legitimizing the creation of safe havens, the Security Council has thus weakened the established right to leave and seek asylum. According to Hathaway and Neve, the substantively unclear “right to remain” offered instead was nothing more than “a hollow rationalization offered by powerful States for their clear infringement of the right to seek asylum.”327

  • 328   UN Doc. S/RES/1296 (10 Apr. 2000), para. 15.
  • 329   Report of the Secretary-General on the protection of civilians, UN Doc. S/1999/957 (8 Sept. 1999) (...)
  • 330   As the UNHCR Executive Committee emphasized “activities on behalf of internally displaced persons (...)

7Despite the mixed experience of the 1990s, and in particular the critical failure to protect the internally displaced in Rwanda and Srebrenica, the Security Council has renewed its willingness to consider the “appropriateness and feasibility of temporary security zones and safe corridors” for the protection of civilians and the delivery of assistance in situations characterized by the threat of genocide, crimes against humanity and war crimes in resolution 1296 on the protection of civilians.328 From a normative point of view, this provision will not necessarily contribute to the erosion of the right to leave. In times of internal armed conflict, safe areas may arguably prove to be useful as a measure of last resort in order to ensure the protection of civilians if the Security Council’s actions to address the root causes of displacement have failed; however, where the Security Council decides to establish safe havens in the future, a credible military force will be crucial for the protection of the internally displaced persons in theses areas.329 In line with UNHCR’s approach to internal displacement, safe havens should only be adopted on the basis of humanitarian considerations and with due respect for the right to leave and seek asylum.330

3.1.2 Peace Operations and UNHCR’s Humanitarian Mandate

  • 331   See generally Palley, C. ‘Legal Issues Arising from Conflicts between UN Humanitarian and Politic (...)
  • 332   While peacekeeping forces were once perceived as neutral, it is precisely in the pursuance of pro (...)
  • 333   Newland and Meyers, for instance, note that “[t]he authorization of military force to deliver hum (...)

8The inevitable interface between humanitarian organizations like UNHCR and the Security Council and its authorized military peace operations has drawn renewed attention to a broader debate to the balance between “humanitarian” and “political” mandates in the UN system. It is difficult to clearly classify mandates into certain categories.331 Measured by the effects of their activities, even peacekeeping mandates could be understood as humanitarian operations – especially in the light of the purposes of the UN Charter (Article 1 (3)) – because they mitigate the impact of armed conflict resulting in human rights violations as well as flows of displaced persons and refugees; however, the use of force has political effects which may counteract the humanitarian objectives of such action as illustrated by the above-discussed safe-areas.332 The on-going discussion about the potential conflict between political and humanitarian mandates therefore concentrates mainly on the primary responsibilities and functions of the organs concerned. In particular, it has been questioned whether the increased interaction of humanitarian organizations such as UNHCR with the Security Council will compromise the humanitarian principles of impartiality, neutrality, independence, and the consent of the host State.333

  • 334 See K. Sugino, ‘The “Non-Political and Humanitarian” Clause in UNHCR’s Statute’, (1998) 17 Refugee (...)
  • 335 As High Commissioner Ogata stated in 1994: “[H]umanitarian action in premised on the principles of (...)
  • 336 See Sugino,supra note 334, at 43. On the activities of the ICRC with regard to refugees see C. Wen (...)

9In order to understand this criticism it is important to note that these humanitarian principles originate in the mandate of the International Committee of the Red Cross which is markedly different from the mandate of UNHCR. Paragraph 2 of the UNHCR Statute merely states that “the work of the High Commissioner shall be of an entirely non-political character, it shall be humanitarian and social”. This clause was included at the outset of the Cold War when political tensions were high and afterwards only used occasionally to underline the “humanitarian nature” of asylum.334 In contrast, the humanitarian principles of the ICRC, enshrined in its Statutes and in the Geneva Conventions, are the result of best practices, promoting the legitimacy of the ICRC and the effectiveness of its functions in difficult environments. While UNHCR as part of the overall UN system is not directly bound by these principles, they still represent the precondition for the enjoyment of the protection granted to humanitarian organizations by the Geneva Conventions. When UNHCR expanded its functions to activities to countries of origin in the early 1990s, ExCom and the High Commissioner began to equate attributes of “non-political” and “humanitarian” in its mandate with the established ICRC principles of “neutrality”, “impartiality”, “independence” and the “consent” of the parties concerned.335 The reasons for UNHCR’s increased use of the ICRC’s principles are thus a mixture between doctrinal reorientations towards involvement with political situations at the root of displacement and operational difficulties in conflict situations to which the established Red Cross principles seemed to offer a promising solution.336

  • 337 UN Doc. S/PRST/1996/1 (5 Jan. 1996), S/PRST/1995/41 (23 Aug. 1995).
  • 338 See Newland and Meyers, supra note 260, at 18.

10Nevertheless, the effect intended by the invocation of these principles to maintain or enlarge humanitarian space was somewhat paradoxically counteracted by UNHCR’s increasing cooperation with the Security Council and its peace operations. Although the Security Council has generally preferred not to directly request UNHCR to provide in-country protection in conflict settings, it has urged and supported the Secretary-General’s decisions to send the UNHCR to places such as the former Yugoslavia or the Great Lakes Region in order to “defuse the situation”.337 Consequently, UNHCR has been active, often in a leading capacity, in virtually all major humanitarian emergencies, including those in which the consent of the host State was not given.338 As shown above, today UNHCR cooperates with the Security Council’s peace operations in all phases of displacement, from prevention of refugee flows to voluntary repatriation. Already in 1992 High Commissioner Ogata had described the dangers resulting from this cooperation for the foundations of humanitarian action by stressing that

  • 339 Sadako Ogata, ‘Refugees: Challenge of the 1990s’, Statement at the School for Social Research, New (...)

“[t]here are understandable and obvious differences between the humanitarian aims of UNHCR and the political objectives of the Security Council. Linking the two could at least potentially jeopardize our neutrality and impartiality and affect our ability to work in security and confidence on both sides of a front-line. But the security conditions on the ground left us with little choice.”339

11The Security Council has tried to solve this dilemma between the need for military protection and the resulting weakening of humanitarian principles by a two-pronged strategy.

  • 340 UN Doc. S/RES/1502 (26 Aug. 2003), preamble. The principle of “independence” was probably delibera (...)

12First of all, the Council has stressed the significance of these principles for the safety of relief workers but also to ensure humanitarian access to affected populations. Only humanitarian organizations that respect these principles would qualify for a potential right to humanitarian access under international humanitarian law in light of the Security Council’s recent practice. Resolution 1502 on the safety of humanitarian personnel clearly underlines the “importance for humanitarian organizations to uphold the principles of neutrality, impartiality and humanity in their humanitarian activities”.340

  • 341 See also Palley, supra note 331, at 167.
  • 342 UN Doc. S/RES/1265 (17 Sept. 1999), para. 14. The Council equally underlined the importance of civ (...)

13Second, the Security Council has changed the structure of its peace operations by creating so-called integrated missions in which a Special Representative of the Secretary-General holds the overall responsibility for political, military and humanitarian responses. These integrated missions provide for a larger civilian component for field administration and training for both military and civilian personnel.341 Accordingly, the Security Council has used its framework resolutions on the protection of civilians in armed conflict to request the Secretary-General to ensure that UN personnel involved in peacemaking, peacekeeping and peace-building activities have appropriate training in international humanitarian law, human rights and refugee law, including child and gender-related provisions, negotiations and communication skills, cultural awareness and civilian-military coordination, and urged States and relevant international and regional organizations to take similar measures.342

  • 343 See E.B. Eide et al., Report on Integrated Missions: Practical Perspectives and Recommendations, I (...)

14Opinions about these integrated missions largely diverge: Several critics argue that integration by implication further undermines the impartiality and neutrality of humanitarian action, while others claim thathumanitarian space can be better protected through integrated structures than insituations of fragmentation, because the humanitarian perspective is a part of the mission itself.343 Given their country-specific designs, it is difficult to generally assess at this point whether integrated missions will ultimately halt or even reverse the current erosion of the humanitarian principles, and the simultaneous reduction of humanitarian space. However, they may certainly represent potential tools at the Security Council’s disposal to reconcile the tensions between political and humanitarian mandates related to international refugee protection within its overall framework on the protection of civilians in armed conflict.

3.2 Erosion through Sanctions Regimes

  • 344 See L. Picchio Forlati and L.-A. Sicilianos, Lessanctions économiques en droit international/Econo (...)

15In addition to UN peace operations, economic sanctions are another important Security Council measure with the potential to strengthen but also weaken norms of international refugee protection. Whereas peace operations have largely influenced international refugee protection through practice in the field, sanctions have a more direct impact on the development of international norms. In addition to ordering the targeted entity to abandon conduct considered to constitute a threat to international peace and security, resolutions containing sanctions may temporarily suspend – on the basis of Article 25 and 41 of the UN Charter – some of the subjective rights of States and even non-State actors, thus rendering partly or entirely lawful a reaction which would otherwise have been contrary to international law.344 Although derogation from established norms of international law is likely to require an element of deliberateness on the part of the Security Council, the erosion of international refugee protection has mostly resulted from the unintended effects of its enforcement actions. Some of these side-effects have been mitigated by so-called targeted sanctions which were adopted due to the widespread dissatisfaction with comprehensive sanctions, especially their devastating humanitarian effects. However, it is submitted here that even targeted sanctions have negatively affected international refugee protection, notably in the counter-terrorism context.

3.2.1 Impact of Sanctions on Socio-Economic Rights of Refugees

  • 345 For an overview of the indiscriminate effects of different sanctions regimes see Reisman and Stevi (...)
  • 346 Letter from the Secretary-General Addressed to the President of the Security-Council, UN Doc. S/22 (...)
  • 347   See Goodwin-Gill and McAdam, supra note 15, at 314.
  • 348   See Articles 17 to 30 of the 1951 Convention. Strictly speaking, the Convention does not grant an (...)
  • 349   See, for instance, the 1966 International Covenant on Economic Social and Cultural Rights as the (...)

16The indiscriminate impact of comprehensive sanctions on the human rights of civilian populations was observed as early as 1992 by the UN Mission sent to Iraq to assess the post-conflict damage after the First Gulf War.345 In its report to the Security Council, the Mission noted that sanctions imposed by the Council may have a particularly heavy socio-economic impact on vulnerable social groups such as women, children and displaced persons. For this reason, the mission called for an immediate lifting of the sanctions.346 Although socio-economic rights alone do not represent a sufficient ground to obtain refugee status,347 the 1951 Convention does provide for certain socio-economic entitlements of refugees such as housing, employment and education in their respective countries of asylum on a non-discriminatory basis.348 Moreover, international human rights law offers complementary protection that is independent from refugee status.349

  • 350   See Kourula, supra note 4, at 257.
  • 351   See G.L. Burci, ‘The Indirect Effects of United Nations Sanctions on Third States: The Role of Ar (...)
  • 352 UNHCR, Addendum to the Report of the United Nations High Commissioner for Refugees, 1992, UN Doc. (...)

17As the practice of the Security Council during the 1990s revealed, sanctions may normatively weaken these socio-economic rights of displaced persons at different stages of their displacement. On the one hand, most countries that are the target of sanctions are refugee-producing, and their negative human rights record frequently gives rise to internal tensions. The isolation of States facing comprehensive sanctions may further aggravate the internal situation and lead to more forced population movements which, in turn, create or exacerbate a threat to international peace and security. On the other hand, sanctions also affect refugee populations in third States whose economies may already suffer from the presence of large numbers of refugees.350 Although Article 50 of the UN Charter provides that third States faced with “special economic problems” arising from preventive or enforcement measures have a right to consult with the Security Council, this mechanism has had only limited success.351 Sanctions may hence degrade conditions in the country of origin, and in the country of asylum at the same time. With regard to Haiti in 1993, for instance, former High Commissioner Ogata underlined that “the political stalemate, combined with a deteriorating economy and biting sanctions, have kept alive the risk of a major outflow” from the country while calling “to all Governments in the region to maintain an open, humanitarian policy of admission for those who are compelled to flee.”352

  • 353 See generally Reinisch, supra note 8.
  • 354 In each of the comprehensive sanctions regimes the Security Council has exempted the export of cer (...)
  • 355 See Kourula, supra note 4, at 258.

18Whereas the Council is authorized by Article 41 to impose measures interrupting economic relations, it is also required by Article 24 (2) in conjunction with Article 1 of the UN Charter to promote respect for human rights, including social and economic rights, to solve problems of a humanitarian character, and to settle international disputes in conformity with international law, including refugee law, human rights and humanitarian law.353 In view of this obligation under the UN Charter, the Council has included humanitarian exceptions in most comprehensive sanctions regimes, permitting, subject to the supervision of the sanctions committee, the delivery of foodstuffs, medical supplies, cooking and heating fuel and materials essential for civilian needs.354 Nonetheless, humanitarian organizations have still reported the infliction of suffering leading to hunger, malnutrition and deaths of vulnerable persons, Iraq being the most prominent example. Part of the problem is certainly the political nature of economic sanctions under the UN Charter and the message they are supposed to send to governments or parties threatening or breaching international peace and security. In decisions on the imposition, suspension or lifting of sanctions, political and traditional security concerns have often outweighed humanitarian considerations on behalf of refugees, IDPs and other vulnerable populations.355

  • 356 See e.g. UN Doc. A/RES/51/193 (10 Feb. 1997) in which it encourages the Security Council to provid (...)
  • 357 Committee on Economic, Social and Cultural Rights, supra note.
  • 358 See studies and reports by the following agencies: United Nations Department on Humanitarian Affai (...)

19Against the background of the proliferation of sanctions measures during the 1990s, numerous proposals and pressure from diverse sources have attempted to reconcile these political and humanitarian concerns. The General Assembly has renewed efforts to render the Council politically accountable and has initiated discussion within subsidiary organs, including the Special Committee on the Charter of the United Nations and the Sixth Committee, on different issues related to the implementation of sanctions regimes.356 The Committee on Economic, Social and Cultural Rights has equally criticized the socio-economic impact of sanctions and made a number of proposals in its General Comment No. 8 for ensuring that such rights find appropriate consideration in the design of sanctions measures.357 Moreover, other subsidiary organs, such as UNICEF, specialized agencies such as WHO, or non-governmental organizations such as the ICRC, have underlined the limits set by the human rights, humanitarian law and refugee law framework.358

  • 359 Since the late 1990s, three international initiatives have been undertaken to consolidate previous (...)
  • 360 See A. Tostensen and B. Bull, ‘Are Smart Sanctions Feasible?’, (2002) 54 World Politics 373, at 37 (...)
  • 361 World Summit Outcome, A/RES/60/1 (24 Oct. 2005), paras. 106-108.
  • 362 UN Doc. S/RES/1314 (11 Aug. 2000), para. 15.

20The policy process that was thus set in motion finally resulted in the move from comprehensive sanctions to targeted sanctions regimes which illustrates particularly well the increasing emphasis on human security in the Security Council’s activities.359 In theory, targeted sanctions differ from comprehensive sanctions in two ways. First, they more effectively target the political elite committing acts considered reprehensible by the international community, via arms embargos, financial sanctions, and travel restrictions. Second, targeted sanctions are more focused on the protection of vulnerable social groups (for example, children, women, the elderly, and refugees) from collateral damage by exempting specified commodities (such as food and medical supplies) from the embargo on a more institutionalized basis.360 However, while targeted sanctions have meanwhile fully replaced comprehensive sanctions, concerns about the humanitarian impact of sanctions measures remain a challenge to the Security Council’s actions with regard to international refugee protection. Accordingly, the 2005 Summit Outcome document recognized that sanctions remain an important tool for maintaining international peace and security without recourse to the use of force but also stressed the need “to ensure that sanctions are carefully targeted in support of clear objectives” and that they are “implemented in ways that balance effectiveness to achieve the desired results against the possible adverse consequences, for populations and third States.”361 The Security Council itself has recognized this double-edged nature of sanctions and made efforts to prevent the erosion of socio-economic standards and possible human rights violations by reiterating the need to assess the impact of sanctions on vulnerable populations, for instance, in its resolutions on children and armed conflict.362

3.2.2 Sanctions as Impediments to Humanitarian Access

  • 363 See Ibid., at 258.
  • 364 UN Doc. A/RES/51/242 (26 Sept. 1997), para. 15 (emphasis added). See also the Supplement to an Age (...)

21The imposition and lifting of sanctions do not only directly weaken the socio-economic rights of refugees and displaced persons but they also have a significant impact on humanitarian organizations themselves, namely on their ability to gain access to refugees in order to provide international protection and assistance.363 Although the Security Council has often required Member States and other relevant actors to allow for humanitarian assistance, its own actions may de facto represent more serious impediments to humanitarian access. In this respect, in resolution 51/242 on Annex II of the Supplement to an Agenda for Peace, entitled “Question of sanctions imposed by the United Nations”, the General Assembly emphasized that “[h]umanitarian assistance should be provided in an impartial and expeditious manner. Means should be envisaged to minimize the particular suffering of the most vulnerable groups, keeping in mind emergency situations, such as mass refugee flows.”364

  • 365 According to Kourula, the procedure provided a noteworthy departure from the delivery-by-delivery (...)
  • 366 See Kourula, ibid., at 263, citing DPI Press Release, SC/6086 (18 Aug. 1995), containing a stateme (...)
  • 367 See Kourula, supra note 4, at 263.

22Under the comprehensive sanctions regime in the Federal Republic of Yugoslavia (Serbia and Montenegro) and Bosnia, for instance, the delivery of humanitarian assistance was impeded or delayed in a number of instances due to the slow granting of authorizations by the sanctions committee for the Federal Republic of Yugoslavia (Serbia and Montenegro) as a result of case-by-case processing. Consequently, UNHCR closely cooperated with the committee by streamlining a procedure of prompt humanitarian exemptions from sanctions since 1993, thus promoting their mutual understanding of each other’s interests and constraints. The end result was a clear and almost automatic exemption procedure whose raison d’être was to ensure the effectiveness of the delivery of humanitarian relief items and thus also international protection.365 According to one observer, it could not have been claimed that the sanctions committee had in any way hampered the provision of international protection in the Federal Republic of Yugoslavia or in Northern Bosnia-Herzegovina by the time sanctions were lifted at the end of 1995.366 The Security Council could therefore not be accused of having contributed to violations of human rights when initially imposing the sanctions without automatic exemption of humanitarian goods.367

  • 368 The Oil-for-Food Program was established by Security Council resolution 986 (UN Doc. S/RES/986 (14 (...)
  • 369 See Tostensen and Bull, supra note 360, at 381.

23After this ad hoc cooperation between UNHCR and the FRY (Serbia and Montenegro) sanctions committee, it took different attempts to reform exemption procedures, such as the rather unsuccessful Oil-For-Food Program,368 before the practice of the sanctions committees showed some improvements. Besides the impractical and lengthy item-specific exception procedure mainly applied during comprehensive sanctions regimes, institution-specific exemptions now allow recognized international humanitarian organizations – NGOs like Oxfam, the Red Cross and the Red Crescent Societies, or intergovernmental organizations like UNHCR – blanket exemptions to import items to support their activities on the ground. Country-specific exemptions also take into account the specificities of each sanctions episode.369 Consequently, the humanitarian and legal considerations that led the Security Council to address the erosion of socio-economic standards in the first place have also resulted in an institutional learning process in favor of the protection of vulnerable populations for the Security Council’s sanctions committees.

3.2.3 Sanctions and the Securitization of Refugee Flows: Asylum-Seekers as Potential Terrorists?

  • 370 UN Doc. S/RES/1373 (28 Sept. 2001). The first time the Security Council adopted a general resoluti (...)
  • 371 See Gowlland-Debbas, supra note 5, at 298; Goodwin Gill, supra note 98; Noll, supra note 98.
  • 372 UN Doc. S/RES/1373 (28 Sept. 2001), para. 3(f), (g). As Penelope Mathew observes, the Council prob (...)
  • 373 UN Doc. S/RES/1373 (28 Sept. 2001), para. 5; see also UN Doc. S/RES/1377 (12 Nov. 2001), preamble. (...)

24While the socio-economic impact of targeted sanctions may be substantially less than for comprehensive sanctions, the adoption of the Security Council counter-terrorism resolution 1373 has shown that targeted measures may have new and equally negative effects on international refugee protection.370 In the wake of the terrorist attacks of 11 September 2001, this resolution linked refugee status with acts of terrorism, thus reinforcing a general trend towards the securitization and criminalization of refugee flows.371 More precisely, the Security Council called on States to take “appropriate measures” to ensure that asylum seekers have not “planned, facilitated or participated in the commission of terrorist acts”, and to “ensure […] that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists”.372 The resolution further alludes to the so-called exclusion clause of Article 1 F(c) of the 1951 Convention by declaring that: “Acts, methods and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also to contrary to the purposes and principles of the United Nations.”373

  • 374 For a discussion of the quasi-legislative effects of this Security Council resolution see generall (...)
  • 375 UN Doc. S/RES/1267 (12 Oct. 1999). On the implementation of anti-terrorism resolutions at the nati (...)

25Although resolution 1373 does not impose targeted sanctions in the classical sense, it obliges UN Member States to freeze all funds and other financial assets of persons who commit or attempt to commit terrorist acts or support such activities, and also provides for the criminalization of certain acts in the domestic laws of States.374 At the same time, the resolution does not provide a definition of terrorist acts and leaves it to implementing States to designate the entities that are targeted by sanctions at the domestic level. Resolution 1373 is therefore frequently associated with the targeted sanctions regime established under resolution 1267 against Al-Qaida and the Taliban but leaves wider discretion at the implementation level.375 Although the Security Council’s statements on international refugee protection were only made in the recommendatory part of this resolution, its quasi-legislative character and the discretion left to Member States in the implementation of its provisions form the general context in which the normative effects of this resolution have to be interpreted.

  • 376 See Goodwin-Gill and McAdam, supra note 15, at 195.
  • 377 On this debate see generally Goodwin Gill and McAdam, supra note 15, at 184-189.
  • 378 See Allain, supra note 322, at 546.
  • 379 As occurred in the ICJ’s interim decision in the Lockerbie case: Questions of Interpretation and A (...)
  • 380 Despite the lack of clear consensus on whether the Security Council may also encroach on customary (...)

26Given the level of specificity in the Security Council’s language, it is submitted here that its statements on the substantive content of international refugee law may directly weaken well-established standards under the regime of the 1951 Convention, which already contains specific rules governing the definition of a refugee and the denial of refugee status. As State security concerns have always been a part of the international protection regime, these rules arguably provide to some extent for exclusion from refugee status in the case of “terrorist acts”.376 Article 1 F (c), for instance, has been the subject of a long-standing debate that may have been closed by the Security Council’s declaration that terrorism is “contrary to the acts contrary to the purposes and principles of the United Nations”.377 In addition, the Security Council may have invited for a progressive interpretation of other relevant clauses of the 1951 Convention. As Allain observes, by basing themselves on resolution 1373, States may “look to breathe new life into Article 33 (2) of the 1951 Convention”, which provides for an exception to the principle of non-refoulement in case of security concerns of the country of asylum.378 Such a reinterpretation of the provisions of 1951 Convention could also find support in Article 103 of the UN Charter, which allows the Security Council to override existing treaty law when adopting mandatory measures under Chapter VII.379 Yet, it is to be kept in mind that the principle of non-refoulement, as the foundational element of international refugee protection, is not only enshrined in Article 33 of the 1951 Convention, but is also customary international law and may even have acquired the status of a peremptory norm of international law, or ius cogens. Consequently, it is not only binding for parties to the 1951 Convention but also for the Security Council.380

  • 381 See R. Bruin and K. Wouters, ‘Terrorism and the Non-derogability of Non-refoulement’, (2003) 15 In (...)
  • 382 The power may be exercised, “if the Secretary of State reasonably […] (a) believes that the person (...)
  • 383 Anti-Terrorism, Crime and Security Act 2001, 2001 Chapter 24, section 33 (1) lit. a) and b).
  • 384 Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1. File No.: 27790. See O.C. Ok (...)
  • 385 R. Lubbers, ‘Message’, in M.N. Schmitt and G.L. Beruto (eds.), Terrorism and International Law: Ch (...)

27While the principle of non-refoulement sets the benchmark for the implementation of resolution 1373 by States, the Security Council’s statements have nonetheless nourished existing national policies aimed at the containment of refugee flows.381 The British Anti-Terrorism, Crime and Security Act, for instance, provides the Secretary of State with the power to “certify” a suspected international terrorist.382 In an asylum appeal, Section 33 further allows him to certify that the 1951 Convention does not apply so that the appellant does not benefit from the protection of non-refoulement “because Article 1(F) or 33(2) applies to him” and that his removal from the United Kingdom would be “conducive to the public good”.383In Suresh, a national security case in Canada concerning the exception of Article 33 (2) of the 1951 Convention, involvement in “terrorism” was a basis for deportation, but terrorism was not defined in the relevant legislation.384 Former High Commissioner
Lubbers thus rightly notes that “there have been examples of measures that – even though they may have been adopted in good faith – have negatively affected people in need of international protection. In some cases, carefully built refugee protection standards may have been eroded by the application of unduly restrictive legislative or administrative measures.”385

  • 386 UN Doc. 1373 (28 Sept. 2001), para. 3 (g).
  • 387 UN Doc. S/RES/1456 (20 Jan. 2003), para. 6.
  • 388 UN Doc. S/RES/1624 (14 Sept. 2005), preamble and para. 4, “[r]ecalling in addition the right to se (...)
  • 389 See, for instance, UN Doc. A/RES/51/210 (17 Dec. 1996), para. 5 ; UN Doc. A/RES/57/219 (27 Feb. 20 (...)
  • 390 Brownlie, supra note 379, at 223.

28Considering this impact of resolution 1373 on national and international refugee protection, the Security Council has further elaborated on the terms of resolution 1373 which already generally require counter-terrorism measures to be “in conformity with international law”.386 After first emphasizing in resolution 1456 that “States ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law”, the Security Council has reiterated this formulation in connection with all 1373 follow-up resolutions.387 Resolution 1624 even explicitly refers to the right to seek asylum and 1951 Convention as well as the right to non-refoulement.388 Interestingly, these formulations are nearly identical with the relevant resolutions of the General Assembly which has used its general competence over international refugee protection to keep a watchful eye on the counter-terrorism activities of the Security Council.389 Similar to comprehensive sanctions, the normative effects of the Security Council’s targeted sanctions on international refugee protection do not evade the political checks and balances of the UN system. Nevertheless, with its counter-terrorism resolutions, the Security Council has once again “chosen to make dispositions in an area governed by precise principles of public international law”.390

29A critical appraisal of the Security Council’s considerable contribution to the development of international refugee protection in some areas therefore has to acknowledge that the normative activism of this political organ may also have negative repercussions on the rules of international law governing the protection of refugees.

Notes

310 In Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion of 28 May 1948, [1948] ICJ Rep. 57, at 64. The Court held that “the political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for judgement.” See also A.J.P. Tammes, ‘Decisions of International Organs as a Source in International Law’, (1958) 94 Recueil des cours 261, especially at 344; B. Conforti, ‘Le rôle de l’accord dans le système des Nations Unies’, (1974) 142 Recueil des cours 203; S. Lamb, ‘Legal Limits to United Nations Security Council Powers’, in G.S. Goodwin-Gill and S. Talmon (eds.), The Reality of International Law. Essays Brownlie (1999), 361.

311 Gowlland-Debbas, supra note 83, at 201.

312 These legal consequences would result from a violation of Article 25 of the UN Charter as occasionally emphasized by the Security Council (UN Doc. S/RES/ 232 (1966) on South Rhodesia; UN Doc. S/RES/686 (2 Mar. 1991) on Iraq ). On the scope and content of Article 25 of the UN Charter see N. Thomé, Les Pouvoirs du Conseil de Sécurité au regard de la Pratique Récente du Chapitre VII de la Charte des Nations Unies (2005), 228. For a discussion of the legal consequences of such non-compliance see K. Doering, ‘Unlawful Resolution of the Security Council and their Legal Consequences’, (1997) 1 Max Planck Yearbook of United Nations Law 91 at 99. See also M. Koskenniemi, supra note 77, at 342, stating that the “right ‘of last resort’ of member States [sic!] to decide, for themselves, on whether an act has been ultra vires is difficult to reject – despite the evident problems it causes to the credibility of the collective security system.”

313 See Newland and Meyers, supra note 260, at 17.

314 In the preamble to UN Doc. S/RES/941 (23 Sept. 1994), for instance the Security Council took note “of the information provided by the United Nations High Commissioner for Refugees (UNHCR) and the International Committee of the Red Cross (ICRC), and that contained in other relevant reports (UN Doc. S/1994/265 and UN Doc. S/1994/674), particular regarding grave violations of international humanitarian law affecting the non-Serb population in those areas of the
Republic of Bosnia and Herzegovina under the control of Bosnian Serb forces”.

315 J. Grombach Wagner, ‘An IHL/ICRC Perspective on Humanitarian Space’, (2005) 32 Humanitarian Practice Network, available at http://www.odihpn.org/report.asp?ID=2765 (last visited on 20 Jul. 2009). See also Inter-Agency Standing Committee, Background Document: Preserving Humanitarian Space, Protection and Security, WO/0803/2583/7 (26 Feb. 2008).

316   On the “right to leave” see supra notes 263 and 264.

317   See B.S. Chimni, ‘The Incarnation of Victims: Deconstructing Safety Zones’, in N. Al-Naumi and R. Meese (eds.), International Legal IssuesArising under the United Nations Decade of International Law (1995), 823 at 825. See generally H. Yamashita, Humanitarian Space and International Politics: The Creation of Safe Areas (2004).

318   See Phuong, supra note, at 137.

319   See C. Helton, The Price of Indifference – Refugees and Humanitarian Action in the New Century (2002), 172; See more generally S. Ogata, ‘The Right to Remain’, (1993) 92 Refugees 11.

320   The idea for the establishment of safe areas originated in international humanitarian law which presupposes the consent of the warring parties for the creation of neutralized zones (compare, for instance, Art. 23 of the Geneva Convention Relative to the Treatment of Prisoners of War (75 UNTS 135, 12 Aug. 1949) [hereinafter: Geneva Convention III], Art. 14 and 15 of the Geneva Convention IV. The question of consent to the so-called Operation Provide Comfort in Iraq is problematic. Minear and Weiss argue that Operation Provide Comfort was based on consent, because the UN had negotiated memoranda of understanding with governmental authorities several times (L. Minear and T. Weiss, Mercy Under Fire: War and the Global Humanitarian Community (1995), 171). On the other hand, Landgren points out that the safe zone was established in a military climate and was not based on consent (K. Landgren, ‘Safety Zones and International Protection: A Dark Grey Area’, (1995) 7 International Journal of Refugee Law 436). A strong argument against consent is the fact that Saddam Hussein’s government attacked the zone in Irbil by an incursion in September 1996. However, it is important to point out that the safe zones in Northern Iraq were backed by credible military strength.

321 As Goodwin-Gill observes further: “Turkey’s decision to close its border to Kurdish refugees, and the support or non-objection of a substantial number of members of the international community, if it did not breach non-refoulement (understood as a general principle of international law that included the dimension of non-rejection at the frontier), certainly consolidates the exception provided by safe havens”. G.S. Goodwin-Gill, The Refugee in International Law (1996), 141.

322 See J. Allain, ‘The Jus Cogens Nature of Non-refoulement’, (2002) 13 International Journal of Refugee Law 533., at 544. As Frelick notes “UN Resolution 688 is important both for what it does and does not say”. Bill Frelick, ‘Refugee Rights: The New Frontier of Human Rights Protection’, (1998) 4 Buffalo Human Rights Law Review 261 at 265.

323   UN Doc. S/RES/819 (16 Apr. 1993) and UN Doc. S/RES/824 (6 May 1993).

324   UN Doc. S/RES/929 (22 Jun. 1994), para. 2.

325   See Landgren, supra note 320, at 448.

326   See J. Hathaway and A. Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’, (1997) 10 Harvard Human Rights Journal 115,
at 136.

327 Ibid.

328   UN Doc. S/RES/1296 (10 Apr. 2000), para. 15.

329   Report of the Secretary-General on the protection of civilians, UN Doc. S/1999/957 (8 Sept. 1999), recommendation 39, at 21.

330   As the UNHCR Executive Committee emphasized “activities on behalf of internally displaced persons must to undermine the institution of asylum, including the right to seek and enjoy in other countries asylum from persecution”. UNHCR Executive Committee Conclusion No. 75 (XLV) (1994), para. l.

331   See generally Palley, C. ‘Legal Issues Arising from Conflicts between UN Humanitarian and Political Mandates – A Survey’, in V. Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (1994), 145 at 151.

332   While peacekeeping forces were once perceived as neutral, it is precisely in the pursuance of providing protection to civilians by, for example, establishing safe areas, that they have sacrificed their once neutral and impartial role.

333   Newland and Meyers, for instance, note that “[t]he authorization of military force to deliver humanitarian assistance in the context of a Chapter VII, UN peace-enforcement operation is a contradiction in terms if one accepts the honoured rhetoric of neutrality and impartiality of humanitarian assistance. The statute of UNHCR insists that the High Commissioner’s work is of a strictly non-political character. But a Chapter VII action is inherently and unmistakably political.” Newland and Meyers, supra note 260, at 27.

334 See K. Sugino, ‘The “Non-Political and Humanitarian” Clause in UNHCR’s Statute’, (1998) 17 Refugee Survey Quarterly 34, at 40. See also G.S. Goodwin-Gill, ‘The Politics of Protection’, (2008) 27 Refugee Survey Quarterly 8, for a historical analysis of UNHCR’s non-political mandate. He concludes as follows: “It is unrealistic to imagine that the problem of refugees can ever be
entirely non-political, and just as the politicisation of protection can constrain options for action, so can over emphasis of otherwise humanitarian considerations.” (Ibid., at 21)

335 As High Commissioner Ogata stated in 1994: “[H]umanitarian action in premised on the principles of impartiality and neutrality. Impartiality means helping victims on all sides of the sides of the conflict. Neutrality means more than being independent from political goals and considerations. This is the essence of what I would call ‘humanitarian space’. The pursuit of humanitarian space requires negotiations to obtain consent.” Sadako Ogata, ‘Role of Humanitarian Action in Peacekeeping’, Keynote Address at 24th Annual Vienna Seminar (5 Jul. 1994). See also Sugino,supra note 334, at 43.

336 See Sugino,supra note 334, at 43. On the activities of the ICRC with regard to refugees see C. Wenger, ‘Le Comité de la Croix-Rouge et les Réfugiés’, in C. Constantopoulos, The Refugee Problem on Universal, Regional and National Level (1987), 3-38.

337 UN Doc. S/PRST/1996/1 (5 Jan. 1996), S/PRST/1995/41 (23 Aug. 1995).

338 See Newland and Meyers, supra note 260, at 18.

339 Sadako Ogata, ‘Refugees: Challenge of the 1990s’, Statement at the School for Social Research, New York, 11 Nov. 1992.

340 UN Doc. S/RES/1502 (26 Aug. 2003), preamble. The principle of “independence” was probably deliberately omitted as many humanitarian organizations are not independent. In fact, contrary to the ICRC, the UN is a political organization and UNHCR is authorized and mandated by political bodies such the General Assembly, the UN Secretariat and on certain occasions by the Security Council.

341 See also Palley, supra note 331, at 167.

342 UN Doc. S/RES/1265 (17 Sept. 1999), para. 14. The Council equally underlined the importance of civilian police as a component of peacekeeping operations and recognized the role of police in assuring the safety and well-being of civilians in para. 15.

343 See E.B. Eide et al., Report on Integrated Missions: Practical Perspectives and Recommendations, Independent Study for the Expanded UN ECHA Core Group, May 2005, 7.

344 See L. Picchio Forlati and L.-A. Sicilianos, Lessanctions économiques en droit international/Economic Sanctions in International Law (2004), 293.

345 For an overview of the indiscriminate effects of different sanctions regimes see Reisman and Stevick, supra note 8.

346 Letter from the Secretary-General Addressed to the President of the Security-Council, UN Doc. S/22366 (20 Mar. 1991), para. 18. See also Committee on Economic, Social, Cultural Rights, General Comment 8: The Relationship between Economic Sanctions and Economic Social and Cultural Rights, E/C.12/19997/8 (12 Dec. 1997).

347   See Goodwin-Gill and McAdam, supra note 15, at 314.

348   See Articles 17 to 30 of the 1951 Convention. Strictly speaking, the Convention does not grant any rights but only imposes obligations on States parties to the Convention.

349   See, for instance, the 1966 International Covenant on Economic Social and Cultural Rights as the most pertinent human rights instrument in this context: 993 UNTS 3 (3 Jan. 1976). On complementary protection through human rights see generally McAdam, supra note 11.

350   See Kourula, supra note 4, at 257.

351   See G.L. Burci, ‘The Indirect Effects of United Nations Sanctions on Third States: The Role of Article 50 of the UN Charter’, (1995) 2 African Yearbook of International Law 157. For the general practice on Article 50 of the UN Charter, see B.-O. Bryde and A. Reinisch, ‘Article 50’, in B. Simma (ed.), The Charter of the United Nations, 784-787. See also infra note 356.

352 UNHCR, Addendum to the Report of the United Nations High Commissioner for Refugees, 1992, UN Doc. A/47/12/Add.1 (1 Jan. 1993), para. 8 (emphasis added).

353 See generally Reinisch, supra note 8.

354 In each of the comprehensive sanctions regimes the Security Council has exempted the export of certain humanitarian supplies to the targeted State. For this purpose, the Council has identified particular categories of items of humanitarian supplies that may be exempt with the approval of the respective sanctions committee. Among the particular items exempted from targeted sanctions regimes have been: medical supplies (all comprehensive sanctions regimes), UN Doc. S/RES/253 (29 May 1968), para. 3(d) (Southern Rhodesia); UN Doc. S/RES/661 (6 Aug. 1990), para. 3(c) (Iraq); UN Doc. S/RES/917 (6 May 1994), para. 7(a) (Haiti); UN Doc. S/RES/757 (30 May 1992), para. 4(c) (FRYSM); UN Doc. S/RES/820 (17 Apr. 1993), para. 12 (Bosnian Serbs). In most comprehensive sanctions regimes the exemption of medical supplies has operated without controversy. In the case of Iraq, however, the ability of the government was restricted by the “no dual use requirement” which meant that medical and other exempted supplies could not be exported to Iraq if they had the potential for diversion or conversion into military use; educational equipment and material (Southern Rhodesia): UN Doc. S/RES/253 (29 May 1968), para. 3(d); information materials (Southern Rhodesia and Haiti): UN Doc. S/RES/253 (29 May 1968), para. 3(d) (Southern Rhodesia) and UN Doc. S/RES/917 (6 May 1994), para. 8 (Haiti); foodstuffs (all comprehensive sanctions regimes): UN Doc. S/RES/253 (29 May 1968), para. 3(d) (Southern Rhodesia); UN Doc. S/RES/660 (6 Aug. 1990), para. 3(c) (Iraq); UN Doc. S/RES/917 (6 May 1994), para. 7(a) (Haiti); UN Doc. S/RES/757 (30 May 1992), para. 4(c) (FRYSM); UN Doc. S/RES/820 (17 Apr. 1993), para. 12 (Bosnian Serbs); petroleum and petroleum products (Haiti): UN Doc. S/RES/917 (6 May 1994), para. 7(c)-(d) (Haiti) (when authorized by the Haiti Sanctions Committee or requested by the President and Prime Minister of Haiti and approved by Committee); and foodstuffs (FRYSM): UN Doc. S/RES/943 (13 Sept. 1994), para. 3; UN Doc. S/RES/970 (6 May 1994), para. 7(b). Among the categories the Council exempted, it listed the following: “materials and supplies essential for civilian need” (Iraq; UN Doc. S/RES/687 (8 Apr. 1991), para. 20); and “commodities and products essential for humanitarian need” (FRYSM, UN Doc. S/RES/760 (18 Jun. 1992), sole para.; Bosnian Serbs, UN Doc. S/RES/942 (23 Sept. 1994), para. 7(b); Haiti, UN Doc. S/RES/917 (6 May 1997), para. 7(b)).

355 See Kourula, supra note 4, at 258.

356 See e.g. UN Doc. A/RES/51/193 (10 Feb. 1997) in which it encourages the Security Council to provide special reports in accordance with Articles 15 and 24 of the Charter’, and UN Doc. A/RES/49/58 (17 Feb. 1995), UN Doc. A/RES/50/51 (29 Jan. 1996), UN Doc. A/RES/50/58E (12 Dec. 1995), and UN Doc. A/RES/51/208 (17 Dec. 1996), inviting an examination of the special economic problems confronting States in carrying out sanctions, under Article 50 of the Charter. This has led to a series of reports, such as from the Secretary-General and the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, on means of improving the mechanisms and criteria concerning the implementation and lifting of sanctions (see, for instance, UN Doc. A/50/361 (22 Aug. 1995), UN Doc. A/50/423 (12 Sept. 1995), and UN Doc. A/51/356 (13 Sept. 1996)). The Security Council took note of theses developments, inter alia, in UN Doc. S/24728 (29 Oct. 1992) and UN Doc. S/25035 (30 Dec. 1992).

357 Committee on Economic, Social and Cultural Rights, supra note.

358 See studies and reports by the following agencies: United Nations Department on Humanitarian Affairs: Report by C. von Braunmühl and M. Kulessa, The Impact of UN Sanctions on the Population in Iraq Since the Gulf Crisis, WHO/EHA96.1, (Mar. 1996); UNICEF, Impact of Reduction in Food Ration on the Most Vulnerable Children and Women (Baghdad, Oct. 1994); E. Hoskins, The Impact of Sanctions: A Study of UNICEF’s Perspective (1997). See also the work of the Inter-Agency Standing Committee on the humanitarian impact of sanctions established pursuant to UN Doc. A/RES/46/182 (17 Dec. 1991) and which includes representatives of United Nations organizations and intergovernmental and non-governmental organizations active in humanitarian assistance operations (e.g. its Statement to the Security Council on the humanitarian impact of sanctions ( UN Doc. S/1998/147 (23 Feb. 1998)).

359 Since the late 1990s, three international initiatives have been undertaken to consolidate previous proposals and to improve approaches to the targeting of sanctions, with the goal of increasing their effectiveness. The first of these, the Interlaken Process (http://www.seco.admin.ch/themen/00513/00620/00639/index.html?lang=en), was initiated by the Swiss Government in 1998 and focused on targeted financial sanctions. The second initiative, the Bonn-Berlin Process, (http://www.bicc.de/index.php/publications/studies/studies-no-6) organized by the Foreign Office of Germany in 2000, focused on arms embargoes and travel sanctions. The third initiative in this triad, the Stockholm Process on the Implementation of Targeted UN Sanctions (http://www.smartsanctions.se/), was coordinated by the Swedish Ministry of Foreign Affairs, and took place during 2002.

360 See A. Tostensen and B. Bull, ‘Are Smart Sanctions Feasible?’, (2002) 54 World Politics 373, at 373.

361 World Summit Outcome, A/RES/60/1 (24 Oct. 2005), paras. 106-108.

362 UN Doc. S/RES/1314 (11 Aug. 2000), para. 15.

363 See Ibid., at 258.

364 UN Doc. A/RES/51/242 (26 Sept. 1997), para. 15 (emphasis added). See also the Supplement to an Agenda for Peace: UN Doc. A/50/60-S/1995/1 (3 Jan. 1995), para. 66, in which the Secretary-General also called sanctions a “blunt instrument”. The Secretary-General’s view was generally supported by the Security Council in a presidential statement: UN Doc. S/PRST/1995/9 (22 Feb. 1995).

365 According to Kourula, the procedure provided a noteworthy departure from the delivery-by-delivery requests for authorizations, originally adopted in the guidelines of the committee. See Kourula, supra note 4, at 263.

366 See Kourula, ibid., at 263, citing DPI Press Release, SC/6086 (18 Aug. 1995), containing a statement issued by Ambassador Emilio J. Cardenas, Chairman of the Security Council Committee established pursuant to UN Doc. S/RES/724 (15 Dec. 1991) concerning Yugoslavia, indicating that on 15 Aug. 1995 the Committee had approved, among others, UNHCR’s requests for supply of fuel and helicopter flights, submitted to the Committee the previous day.

367 See Kourula, supra note 4, at 263.

368 The Oil-for-Food Program was established by Security Council resolution 986 (UN Doc. S/RES/986 (14 Apr. 1995) and basically allowed the Iraqi government to sell oil in order to purchase items that were not embargoed under the comprehensive economic sanctions. Certain items, such as raw foodstuffs, were expedited for immediate shipment. However, requests for most items, including such simple things as pencils and folic acid, were reviewed in a process that typically took about six months before shipment was authorized. By the time that the comprehensive sanctions were lifted in 2003, the majority of the population was dependent on food rations from the Oil-for-Food Program. Loescher estimates that about 60 percent of the population depended on the program for basic nutrition in 2003 (see G. Loescher, ‘A Disaster Waiting to Happen’, The Guardian, 2 Feb. 2003, available at http://www.guardian.co.uk/world/2003/feb/02/iraq.immigration (last visited 30 May 2009).

369 See Tostensen and Bull, supra note 360, at 381.

370 UN Doc. S/RES/1373 (28 Sept. 2001). The first time the Security Council adopted a general resolution on international terrorism in which it appeared to identify refugees and asylum seekers as potential participants was in October 1999. See UN Doc. S/RES/1269 (19 Oct. 1999).

371 See Gowlland-Debbas, supra note 5, at 298; Goodwin Gill, supra note 98; Noll, supra note 98.

372 UN Doc. S/RES/1373 (28 Sept. 2001), para. 3(f), (g). As Penelope Mathew observes, the Council probably drew this language from the General Assembly’s Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, annexed to UN Doc. A/RES/51/210, ‘Measures to Eliminate International Terrorism’ (17 Dec. 1996), para. 3, but with omitting the references to the importance of the safeguards of the 1951 Convention. See P. Mathew, ‘Resolution 1373 – A Call to Pre-empt Asylum Seekers? (or ‘Osama, the Asylum Seeker’)’, in J. McAdam (ed.), Forced Migration, Human Rights and Security (2008), 19 at 25.

373 UN Doc. S/RES/1373 (28 Sept. 2001), para. 5; see also UN Doc. S/RES/1377 (12 Nov. 2001), preamble. Article 1 F(c) of the 1951 states that “[t]he provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: […](c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

374 For a discussion of the quasi-legislative effects of this Security Council resolution see generally Alvarez, supra note 9, at 196; Abi-Saab, supra note 9.

375 UN Doc. S/RES/1267 (12 Oct. 1999). On the implementation of anti-terrorism resolutions at the national level see generally A. Bianchi, ‘Security Council’s Anti-terror Resolutions and their Implementation by Member States: An Overview’, (2006) 4 Journal of International Criminal Justice 1044. See also the proposal of the UN Special Rapporteur on the protection of human rights while countering terrorism to abolish the 1267 Sanctions regime and to integrate its mandate into the Counter-Terrorism Committees established under resolution 1373: M. Scheinin, ‘Combating Terrorism while Protecting Human Rights’ (2009), available at http://www.regjeringen.no/nb/dep/ud/kampanjer/refleks/innspill/menneskerettigheter/combating_terrorism.html?id=535383 (last visited 30 May 2009). On relationship between 1267 and 1373 see also V. Gowlland-Debbas, ‘Collective Security Revisited in Light of the Flurry Over UN Reform: An International Law Perspective, in V. Chetail (ed.), Conflits, sécurité et coopération/Conflicts, security and cooperation (2008), 251 at 272.

376 See Goodwin-Gill and McAdam, supra note 15, at 195.

377 On this debate see generally Goodwin Gill and McAdam, supra note 15, at 184-189.

378 See Allain, supra note 322, at 546.

379 As occurred in the ICJ’s interim decision in the Lockerbie case: Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment of 27 Feb. 1998, [1998] ICJ Rep. 3. The principle at issue was whether extradition could only take place on the basis of an extradition treaty. The two States demanding surrender of two Libyan nationals did not have extradition treaties with Libya, and they thus argued that the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 Sept. 1971, was not applicable. See I. Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (1998), 221.

380 Despite the lack of clear consensus on whether the Security Council may also encroach on customary international law when maintaining international peace and security, most authors and courts agree that these encroachments are limited by peremptory norms of international law. See generally E. de Wet, supra note 8, 187. For a recent decision in the counter-terrorism context, see Case
T-315/01 Yassin Abdullah Kadi v. Council and Commission [2005] ECR II-3649.

381 See R. Bruin and K. Wouters, ‘Terrorism and the Non-derogability of Non-refoulement’, (2003) 15 International Journal of Refugee Law 5.

382 The power may be exercised, “if the Secretary of State reasonably […] (a) believes that the person’s presence in the UK is a risk to national security, and (b) suspects that the person is a terrorist”. Anti-Terrorism, Crime and Security Act, 2001 Chapter 24, section 21 (1). Moreover, Section 33 allows the Secretary of State, in an asylum appeal, to certify that the 1951 Convention does not apply, in other words that the is not entitled to the protection of non-refoulement because article 1F or article 33(2) apply, and the removal of the applicant from the United Kingdom would be conducive to the public good.

383 Anti-Terrorism, Crime and Security Act 2001, 2001 Chapter 24, section 33 (1) lit. a) and b).

384 Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1. File No.: 27790. See O.C. Okafor and P.L. Okoronkwo, ‘Re-configuring Non-refoulement? The Suresh Decision, ‘Security Relativism’, and the International Human Rights Imperative’, (2003) 15International Journal of Refugee Law 30. For an overview of further terrorism-related immigration cases at the national and regional level, see B. Saul, ‘Exclusion of Suspected Terrorists from Asylum: Trends in International and European Refugee Law’, (2004) 26 IIIS Discussion Paper (University of Oxford), at 5.

385 R. Lubbers, ‘Message’, in M.N. Schmitt and G.L. Beruto (eds.), Terrorism and International Law: Challenges and Responses (2003), 13 at 13. Goodwin-Gill and McAdam succinctly underline
that “[i]t is one thing to state as a matter of policy that terrorism is contrary to the purposes and principles of the United Nations, but quite another to translate that policy into a rule of law.” Goodwin-Gill and McAdam, supra note 15, at 196. See also Ruud Lubbers’ statement as acting High Commissioner before the Security Council in 2002 UN Doc. S/PV.4470 (7 Feb. 2002), at 3, in which he underlines that “we must ensure Governments avoid making unwarranted linkages between refugees and terrorism.”

386 UN Doc. 1373 (28 Sept. 2001), para. 3 (g).

387 UN Doc. S/RES/1456 (20 Jan. 2003), para. 6.

388 UN Doc. S/RES/1624 (14 Sept. 2005), preamble and para. 4, “[r]ecalling in addition the right to seek and enjoy asylum reflected in Article 14 of the Universal Declaration and the non-refoulement obligation of States under the Convention relating to the Status of Refugees adopted on 28 Jul. 1951, together with its Protocol adopted on 31 Jan. 1967 (“the Refugees Convention and its Protocol”), and also recalling that the protections afforded by the Refugees Convention and its Protocol shall not extend to any person with respect to whom there are serious reasons for considering that he has been guilty of acts contrary to the purposes and principles of the United Nations” (original emphasis).

389 See, for instance, UN Doc. A/RES/51/210 (17 Dec. 1996), para. 5 ; UN Doc. A/RES/57/219 (27 Feb. 2003), para. 1; UN Doc. A/RES/62/159 (11 Mar. 2008), preamble and para.1. See also UN Doc. A/RES/63/185 (3 Mar. 2009), para. 3.

390 Brownlie, supra note 379, at 223.

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