The meaning of repatriation

International Journal of Refugee Law

Volumn 9, Issue 4, 1997, Pages 551-558

  Hathaway, James G ^a,b  

^a YORK UNIVERSITY   (Canada)

^b YORK UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; REFUGEES; REPATRIATION;

EID: 0031404071     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/9.4.551     Document Type: Article

References (14)

1. 'This Convention shall cease to apply to any person . . . if [h]e can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality . . .': Convention relating to the Status of Refugees: 189 UNTS 137, in force 22 April 1954 (1951 Convention), art. 1(C)(5).
2. See, for example, the declaration of the French representative to the Conference of Plenipotentiaries, Mr Rochefort: '[France] was quite prepared to continue to assist such refugees so long as assistance was necessary. But if their country reverted to a democratic tradition, the obligation to assist them should not fall perforce upon the French Government . . . France had merely said that she did not wish to be under an obligation to continue to provide assistance to refugees who could seek the protection of their country of origin': UN doc. A/CONF.2/SR.28, 12-14 (19 Jul. 1951).
3. Statute of the Office of the United Nations High Commissioner for Refugees, UNGA res. 428(V), 14 Dec. 1950, Annex, paras. 8(c), 9.
4. 'It is my view that to replace the principle of voluntary repatriation by safe return, and to substitute the judgement of States and institutions for that of the refugees, is to create space for repatriation under duress, and may be tantamount to refoulement': B.S. Chimni, 'The Meaning of Words and the Role of UNHCR in Voluntary Repatriation', 5 IJRL 442, 454 (1993).
5. It also seems generally to be overlooked that UNHCR is not necessarily constrained by a voluntariness requirement, since para. 9 of its Statute authorises engagement in any kind of repatriation work authorised by the General Assembly.
6. See generally J. Hathaway, 'New Directions to Avoid Hard Problems: The Distortion of the Palliative Role of Refugee Protection', 8 JRS 288 (1995). ('Non-entrée' is used here by the author to mean non-admission and is not to be confused with the notion of 'non-entrée en matière' in art. 16(2) of the Swiss Asylum Law - Ed.)
7. See, for example, Lawyers Committee for Human Rights, 'General Principles Relating to the Promotion of Refugee Repatriation,' May 1992, at 5: 'A refugee can be returned only if his or her return is voluntary. The logic is straightforward: presumably a refugee would genuinely volunteer to return if he or she would not face persecution after returning. It is thus essential that refugees are able to exercise their free and unconstrained will.' UNHCR similarly avoids discussion of the repatriation of persons who have ceased to be refugees, preferring to emphasise the uncontroversial point that genuine refugees may not be returned against their will. Cf. UNHCR, 'Voluntary Repatriation: International Protection,'UNHCR Handbook, Division of International Protection, 10-11 (1996).
8. See, for example, Lawyers Committee for Human Rights, 'General Principles Relating to the Promotion of Refugee Repatriation,' May 1992, at 5: 'A refugee can be returned only if his or her return is voluntary. The logic is straightforward: presumably a refugee would genuinely volunteer to return if he or she would not face persecution after returning. It is thus essential that refugees are able to exercise their free and unconstrained will.' UNHCR similarly avoids discussion of the repatriation of persons who have ceased to be refugees, preferring to emphasise the uncontroversial point that genuine refugees may not be returned against their will. Cf. UNHCR, 'Voluntary Repatriation: International Protection,'UNHCR Handbook, Division of International Protection, 10-11 (1996).
9. Some will no doubt argue against acceptance of mandated repatriation on the grounds that it reinforces the prerogative of States to assign human beings to geopolitical spaces. While acknowledging the moral force of this 'open borders' view, care should be taken to assert the general claim for freedom of international movement in a strategically astute way. In my view, refugee law is an unwise site for this struggle, as defeat would entail critical risks to the most important exception to sovereign authority over borders presently accepted by States.
10. I. Traynor, 'Balkans Refugee "Tax" Angers Germany', Manchester Guardian Weekly, 12 May 1996, at 4.
11. Warner takes this argument further, arguing that . . . 'repatriation means return to home, not merely return to the country of origin': D. Warner, 'Voluntary Repatriation and the Meaning of Return to Home: A Critique of Liberal Mathematics' 7 JRS 160, 162 (1994). He opposes repatriation that does not restore a meaningful sense of community to refugees, and convincingly demonstrates that the simple ability to return refugees to their State of origin may not meet this goal. In my view, Warner overstates the purpose of refugee protection. It is not the case that all persons denied a meaningful, sociologically defined community in their country of citizenship are by that fact alone entitled to Convention refugee status. Refugee status is instead the right of a more limited class, namely those whose civil or political status puts their basic human rights at risk in their own State. It is therefore logically the eradication of the risk to basic human rights that defines the necessary conditions for repatriation, whether or not the country of origin constitutes an ideal 'home' in sociological terms.
12. Above 9.
13. See generally M. Ignatieff, Blood and Belonging: Journeys Into the New Nationalism (1993), at 185: 'The only reliable antidote to ethnic nationalism turns out to be civic nationalism, because the only guarantee that ethnic groups will live side by side in peace is shared loyalty to a state, strong enough, fair enough, equitable enough, to command their obedience.'
14. See, for example, A. Mazrui, 'The African State as a Political Refugee: Institutional Collapse and Human Displacement', UNHCR/OAU Special Issue, (July 1995), 21, 32.