The following are remarks delivered as part of a University of Lausanne Centre de droit comparé, européen et international (CDCEI) event on 16 June 2021.
It is not always appreciated just how extensive is UNHCR’s involvement in court cases. Under article 35 of the Convention and article II of the Protocol, UNHCR has been set the task, recognized and accepted by States, of supervising the application of those treaties, and one way it does this is by intervening, for example, with amicus briefs, in ongoing proceedings. Where the law does not allow intervention, then UNHCR can still issue a statement in anticipation of litigation or, more generally, issue ‘guidelines’ on particular issues of interpretation.
The 1979 Handbook on Procedures and Criteria for Determining Refugee Status was the first attempt to influence decision-making, and was expressly requested by States in the Executive Committee as refugee status determination began to get off the ground. The Handbook was drafted ‘in-house’, with no direct input from States and with no case law (basically, there was very little...). The interpretations proposed drew simply on some 25 years of UNHCR experience and interaction with States in applying the Convention. The text of the Handbook, which was re-issued in 2019, has never changed. This was largely because UNHCR rapidly saw that it would have to pay close attention to what States wanted, to what States thought was the better interpretation, and then to reconcile competing views.
Nevertheless, the need to take account of a substantially altered international scene was appreciated some 20 years later, when UNHCR took up the invitation in the Agenda for Protection to draft ‘guidelines’ for the assistance of decision-makers, whether in refugee status determination or on broader policy questions – something it was well-placed to do.
For UNHCR has a particular ‘standing’ in international law and in international refugee law. It is a subsidiary organ of the General Assembly and is charged with providing international protection to refugees and, together with governments, seeking permanent solutions to the problem of refugees. The breadth of this mandate should not be underestimated, for arguably it opens the way for UNHCR to take issue with the whole range of refugee responses, from initial reception to durable solution.
UNHCR, of course, is the creature of States, but it is also autonomous (at least so long as funding continues...). It cannot achieve or promote the international protection of refugees without a measure of State support, but States are not monolithic, and their interests may pull in different directions. Contrary to the intentions of those who first drafted its Statute in 1950, UNHCR is also a highly operational agency, employing some 17,000 staff in over 130 countries – a fact that gives it considerable experience, over 70 years’ worth, in the lives of those in search of refuge. Not everything it does is clearly about protection and about the Convention, at least in the narrow sense of requiring it to take a position on the meaning of terms. Ultimately, however, it may be called upon to justify its action or inaction, and for that reason it must be able to defend itself against the terms of its Statute or the provisions of its mandate.
My focus for the present is on the interpretation of the refugee definition in the context of refugee status determination (RSD), on which UNHCR has issued some 14 sets of Guidelines since the early 2000s. They cover a range of matters, such as the refugee status of children, the meaning of particular social group, the interpretation of article 1D with regard to Palestine refugees, exclusion from refugee status, and how to deal with claims relating to religion or military service. Evidently, refugee protection is a contested field, and States regularly push back against the demands of protection, especially in regard to what they may claim are novel conceptions of the refugee definition and so-called new groups of refugees.
At the RSD level, which nevertheless has significance for wider questions of protection, UNHCR’s goal is to achieve interpretations of international legal criteria – the refugee definition – that are consistent with the scope and object and purpose of the Convention/Protocol; and, dare one say it, with progressive development as well. UNHCR’s focus is therefore on those courts and tribunals – largely in countries that have RSD procedures in place – which are daily responsible for elucidating the meaning of and applying the refugee definition, and in deciding whether someone is a refugee, or has ceased to be a refugee, or should be excluded from protection as a refugee, or should be protected from penalization as a refugee who has entered irregularly. The 1951 Convention is probably the most litigated treaty in the world today.
In its Guidelines, UNHCR has employed a methodology that combines interpretation, as it were, from first principles, with support from selected case law, drawn from practice in different jurisdictions. The use of case law is instructive because up to now UNHCR has tended to rely mostly on common law jurisprudence and the judgments of international courts. Why? Leaving aside the linguistic challenges, the answer in part is because common law and international courts tend to adopt a narrative approach to case analysis, reasoning from the facts here to the facts there and attempting to lay down and to illustrate the general issues; for example, showing that membership of a terrorist organisation is not alone sufficient to justify exclusion, and why evidence of knowing participation is required.
Obviously, this selectivity may give rise to an appearance of bias. Times are changing, however, and courts in other jurisdictions, once ready to decide refugee cases on the basis of an exercise in syllogistic logic, are now beginning openly to wrestle with the facts of the case, before pronouncing their conclusion; the Cour national du droit d’asile in France is a case in point, and it is likely that future guidelines will incorporate a wider, more balanced perspective of the changing jurisprudence.
But ‘more balanced’, in what sense? A balance of numbers is of little use to the refugee or their lawyer. Knowing that 14 States interpret particular social group to include immutable characteristics and social perception, while 15 States consider one or the other as controlling, brings little comfort. For that reason, a catalogue of decided cases alone is inadequate, and what UNHCR must do, if it is to be able to provide international protection in a dynamic environment, is to analyse and assess the jurisprudence, and then to advance an interpretation that is best able to capture the sense of the refugee definition, and that progressively develops the law, understood in light of the Convention’s object and purpose.
Frankly, UNHCR’s relations with courts can be somewhat dysfunctional. It does not act like a treaty supervisory mechanism, pronouncing ex cathedra on the issues of interpretation, but many tribunals still seem to go out of their way to stress that what UNHCR says is not binding, and then to ignore it. This tends to happen more with the lower courts, but in any event, UNHCR’s positions on interpretation deserve greater respect, and courts ought to follow them, unless they can produce cogent reasons for not doing so.
UNHCR, whether drafting an amicus brief or general guidelines, will need always to be in touch with the grass roots, with protection issues as they emerge and as they are fought in court. It ought also to see national courts as, to some extent, partners in a common endeavour; for courts are agents of the State and, as such, agents for the development of the law. They are a natural point of intervention, a place where UNHCR can facilitate and enable the adoption of interpretations of key criteria that promote the broad agenda of international protection; and judicial decisions may build in time to reflect a consensus among States, a binding customary international law on meaning.
And in Europe?
How has UNHCR’s task of supervising the Convention worked out in Europe? At first glance, things seem to look good, with the Convention and the Protocol repeatedly recognized as underlying European law and policy, and UNHCR recognized as a key partner. But although UNHCR has intervened regularly with the European Court of Human Rights and with the Court of Justice of the European Union, the results are somewhat mixed.
Looking at Europe from another perspective, however, and things are not so good. Border ‘incidents’ involving the abuse and ill-treatment of asylum seekers, criminalisation of refugees and of rescuers and others trying to save lives and to ensure that States fulfil their international obligations, push-backs, pull-backs, and indefinite detention in abysmal conditions, are the order of the day. At the risk of generalising, and bearing in mind the increasing push to ‘externalize’ controls over asylum, it is clear that the scene is characterised by, on the one hand, the failure to achieve a ‘Common European Asylum System’ and, on the other, illegal, although widely tolerated, abuses of executive power.
With regard to the first, it is not clear what further legal influence UNHCR can exercise to promote consistent interpretation and application of refugee criteria, of procedural guarantees, or of reception conditions. There is still, for example, a considerable protection gap between the recognition rates in different States, which is an obvious reason for those ‘secondary movements’ of refugees and asylum seekers that remain the concern of certain EU States, particularly those far removed from the initial points of contact.
There are also inconsistencies between the international status of the refugee as defined in the Convention, and the European status of the refugee; there are gaps between what the 1951 Convention requires, and what EU law prescribes, whether in exclusion, or the meaning of particular social group, or the treatment of Palestinian refugees, or the consequences of recognition of status. There is a danger, too, that these differences will become set in stone, left behind as international refugee law moves on. In fact, the availability of alternative protection mechanisms offers some hope that this will not happen; the European Court of Human Rights, which is very open to UNHCR’s views, may help to keep Europe in line with international protection.
Perhaps we will have to wait for the next steps in European integration to provide the answers, including perhaps a European Union Asylum Agency competent to determine claims to protection and a single European refugee status which entitles those recognized to enjoy Convention rights Europe-wide. Should it ever come about, this will necessitate doing away with Dublin and its related bureaucratic industry and recognizing that protection is a European responsibility. Obviously, it will also entail substantial changes in the current mind-set over solidarity and sovereignty.
On the second problem, the illegal action on the borders and beyond will not be solved in the courts – or not promptly, anyway – but by no less of a change in policy and political will and a change in mind-set. Governments must do what they show no inclination to do – send a clear message that abuse will not be tolerated, and back it up with sanctions. In the absence of such action, there will be plenty for UNHCR to intervene about, although whether a blessing or a curse will probably depend on who’s asking...
Photo UNHCR/@VJehad Nga