The Development of International Refugee Protection through the Practice of the UN Security Council|
4. Conclusion : Balancing an Ambivalent Practice
1The contemporary regime of international refugee protection constitutes a dynamic set of explicit and implicit rules and standards centered on the 1951 Convention as well as the UNHCR Statute and complemented by international human rights and humanitarian law. In the absence of any notable codifications at the universal level, the evolution of the regime has mostly been fostered through the expansion of UNHCR’s mandate by subsequent General Assembly and ECOSOC resolutions. While the General Assembly, in cooperation with ECOSOC and ExCom, seemed to have the monopoly on the development of international refugee protection for a very long time, the Security Council has become an increasingly important actor in the protection regime of the post-Cold War era. In its various activities related to international refugee protection, the Security Council has not drawn its normative authority from the UNHCR Statute or the 1951 Convention. Instead it has based its actions on the UN Charter which stipulates that the Security Council has primary responsibility for maintenance of international peace and security, taking precedence over the General Assembly’s traditional mandate. By using its wide discretion under the UN Charter, the Security Council has thus gradually brought international refugee protection within the steadily expanding ambit of the maintenance of international peace and security.
2Since the early 1990s the Security Council’s enforcement actions have linked massive refugee flows resulting from grave violations of human rights and international humanitarian law with threats to international peace and security. Advancing notions of State and individual responsibility to address the root causes of displacement, the Security Council has subsequently taken enforcement measures under Chapter VII of the UN Charter, identifying State and non-State actors as the potential source of persecution. While confirming the applicability of the right to return in cases of mass exodus, the Security Council has supported UNHCR’s expanding activities to create the conditions conducive to a safe and dignified repatriation and reintegration of refugees to their countries of origin through the conclusion and implementation of comprehensive peace agreements. In this context, the Council has also addressed solutions to property issues in mandates for post-conflict peace-building missions. It is through these missions that the Security Council has contributed to establishing the right to restitution as a distinct norm of international law and an important precondition for durable peace.
3As its activities have increasingly focused on human security alongside State security, the Security Council has also recognized the necessity to address the situation of refugees and the growing number of IDPs during displacement. As a result, various fundamental aspects of international refugee protection were included in the Security Council’s normative framework on the protection of civilians in armed conflict. This framework codifies and develops the Security Council’s practice by combining the strengths of different fields of international law pertinent to the security of individuals. Since the Security Council resolutions on the protection of civilians contain norms of general application without any temporal or situation-specific limitations, they have contributed to the crystallization or consolidation of customary international protection standards, possibly even to their making. Attacks against refugee and IDP camps, as well as the deliberate denial of humanitarian assistance, including attacks against humanitarian personnel, may now constitute threats to international peace and security, and be followed by the imposition of economic sanctions or the authorization of peace operations. As a consequence, the Security Council has become a central forum for the strengthening of norms related to protection, and assistance given to refugees and internally displaced persons, in particular vulnerable groups such as women and children, throughout the continuum of the forced displacement process.
4On the downside, the erosion of normative protection standards through Security Council authorized sanctions and peace operations illustrates the risks involved in the development of international law through the ad hoc and selective decisions of a political organ that weighs humanitarian considerations against traditional security concerns. By legitimizing peace operations to protect safe areas in Iraq, Bosnia and Rwanda, the Council has prevented internally displaced persons from leaving their country of nationality and seeking asylum abroad. At the same time, the Security Council has promoted UNHCR’s involvement in active zones of conflict which has made the refugee agency highly dependent on the protection of these peace operations to the detriment of its humanitarian and non-political mandate. Yet, although the paradigm shift from the security of States towards human security has clearly had erosive effects on norms of international refugee protection, it has also led in reforms of the Security Council’s enforcement measures as shown by its sanctions regimes. Whereas comprehensive sanctions have often had a disastrous humanitarian impact on vulnerable civilian populations, by encroaching on their socio-economic rights and by impeding access to humanitarian assistance, the move to targeted sanctions has mitigated some of these adverse and mostly unintended effects on the framework of international refugee protection.
5Even without judicial review by the International Court of Justice, the Security Council’s actions have also been frequently checked and balanced by other political organs of the UN system with more general competence over international refugee protection. The unwarranted links made between terrorists and refugee status in the context of the counter-terrorism resolutions, for instance, have been met with reaffirmations of the requirement to comply with international human rights, international humanitarian law and refugee law, and in particular with the principle of non-refoulement. Despite undeniable negative repercussions of its political actions, the Security Council’s practice has thus predominantly had a positive influence on the normative development of international refugee protection. Considering the recent evolution of its scope of action towards the security of individuals, it is likely that the Security Council will continue to strengthen international refugee protection by adapting it to the challenges of the complex security environment of the 21st century.
© Graduate Institute Publications, 2010