(Mis)perception of refugees, state sovereignty, and the continuing challenge of international protection

Refugees and Human Rights

Volumn 10, Issue , 2006, Pages 65-89

  Gorlick, Brian ^a  

^a UNHCR RegOffBaltic/NordicCountries   (Sweden)

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[No Author keywords available]

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EID: 84969506651     PISSN: 13876031     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Article

References (80)

1. Brief of the Human Rights Institute of the International Bar Association as Amicus Curiae in Support of Petitioners, Shafiq Rasul et al. v. George W. Bush et al., Fawzi Khalid Abdullah Faha Al Odah, et al. v. United States of America, et al., Supreme Court of the United States (13 January 2004) at 13.
2. UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant (1986), in Compilation of General Comments and Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.7 (2004) 140 at para. 7.
3. James C. Hathaway, The Law of Refugee Status, Butterworths (1991) at 102.
4. See for example, Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, adopted on 18 December 2001 following the first Ministerial Meeting of States Parties, Geneva, Switzerland (12-13 December 2001), available at .
5. "Swiss more fearful of foreign immigrants than terror attacks: survey" Agence France Press (1 December 2004).
6. See "Send back your huddled masses" The Economist (16 December 2004), available at .
7. Iranian-French scholar Farhad Khosokhavar has remarked that "the growing prison population is evidence of an Islamic underclass that is developing across Europe and, at its margins, is increasingly sympathetic to the coalescing ideologies of political Islam." Quoted in "Growing Muslim prison population poses huge risks", International Herald Tribune (9 December 2004) at 1 and 8.
8. David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, The New Press (2003) at 5-6.
9. Professor Andre Klip of Utrecht University has identified as an alarming trend "the increasing servitude of policymakers to mass media." He notes that "the media is compromised by an indulging narcosis towards sensationalism which, in turn, influences its selection of what it reports, and what it polls and presents as 'public opinion.' According to Klip, 'politicians have in some way become increasingly dependent on the media! and when this dependency is permitted to set the agenda and priorities of policy, then 'what is truly going on ⋯ is not relevant anymore, what matters is image building.'" "Inaugural Address André Klip" 8:3 Newsletter: School of Human Rights Research, Utrecht University, Faculty of Law (September 2004) at 3.
10. Keynote Address of Professor James Hathaway at New Delhi Workshop on International Refugee Law, 39:1 Indian Journal of International Law (1999) 4 at 11.
11. Speech by former Indian ambassador, 48th session of the UNHCR Executive Committee (13-17 October 1997).
12. "Editorial: Refugees and Security" 11 International Journal of Refugee Law (1999) 1 at 2.
13. Refugees by Numbers, 2004 ed., UNHCR (2004) at 10-11.
14. ("A continent on the move" The Economist Print Edition, 4 May 2000).
15. For an excellent article that debunks a number of common myths about global migration, see Demetrios G. Papademetrious, "Migration: Think Again", Foreign Policy (Winter 1997-1998) 15.
16. For an analysis of the legally dubious nature of the Australian offshore processing experience see Alice Edwards, "Tampering with Refugee Protection: The Case of Australia," 15 International Journal of Refugee Law (2003) 192.
17. For a discussion of "safe zones" in international law and practice, see Karin Landgren, "Safety Zones and International Protection: A Dark Grey Area," 7 International Journal of Refugee Law (1995) 436.
18. A more critical analysis is offered by B.S. Chimni, "The Incarceration of Victims: Deconstructing Safety Zones", in International Legal Issues Arising under the United Nations Decade of International Law, N. Al-Naumi and R. Meese (eds.), Kluwer Law International (1995) 823.
19. See for example, Gregor Noll, Negotiating Asylum: The EU Acquis, Extraterritorial Protection and the Common Market of Deflection, Martinus Nijhoff Publishers (2000)
20. Jens Vested-Hansen, "Europe's response to the arrival of asylum-seekers: refugee protection and immigration control", New Issues in Refugee Research, Working Paper No. 6, UNHCR (1999)
21. Karin Landgren, "Deflecting international protection by treaty: bilateral and multilateral accords on extradition, readmission and the inadmissibility of asylum requests" New Issues in Refugee Research Working Paper No. 10, UNHCR (1999).
22. Also see, John Morrison, "The trafficking and smuggling of refugees; the end game in European asylum policy?" UNHCR-commissioned study (July 1999).
23. James C. Hathaway and R. Alexander Neve, "Making International Refugee Law Relevant Again: A Proposal for Collectivised and Solution Oriented Protection", 10 Harvard Human Rights Journal (1997) 115.
24. For a critique of this approach, see Deborah Anker, Joan Fitzpatrick, and Andrew Shacknove, "Crises and Cure: A Reply to Hathaway/Neve and Shuck" 11 Harvard Human Rights Journal (1998) 295.
25. UNHCR, Refugees by Numbers: 2004 Edition, UNHCR (2004) at 4-6.
26. Editorial, "End of Refugee Warehousing" International Herald Tribune (29 September 2004).
27. Gil Loescher, "The UNHCR and World Politics: State Interests vs. Institutional Autonomy" 35 International Migration Review (2001) 33 at 42-43.
28. Also see, Brian Gorlick, "A Problem from Hell: Humanitarian Operations in a Vengeful World" (2003), available on-line at the Forced Migration Review website, Refugee Studies Centre, University of Oxford,
29. Gil Loescher, "Going Forward from the Terrorist Attack on the UN" 17 Journal of Refugee Studies (2004) 257.
30. Les Roberts et al., "Mortality before and after the 2003 invasion of Iraq: Cluster sample survey," 364 The Lancet (2004) 1857 at 1860 and 1863, available at .
31. Also see, "Chaos, murder and mayhem" The Guardian Weekly (29 October-4 November 2004) 15.
32. Gil Loescher, "UNHCR at Fifty: Refugee Protection and World Politics", in Problems of Protection: The UNHCR, Refugees and Human Rights, Nikiaus Steiner, Mark Gibney, and Gil Loescher (eds.), Routledge (2003) 3 at 14.
33. For a description of these various programs and ongoing initiatives, see Ninette Kelley and Jean-Francois Durieux, "UNHCR and Current Challenges in International Refugee Protection" 22:1 Refuge (2004) 6.
34. Tracey Glover and Simon Russell, "Overseeing the Refugee Convention", Working Paper No. 7: "Coordination with UNHCR and States", A collaboration of the International Council of Voluntary Agencies and the Program in Refugee and Asylum Law, University of Michigan (December 2001), available at . The quotation is drawn from a discussion on why the UNHCR has had difficulties criticizing states for non-compliance with the Refugee Convention.
35. See Erik Roxström and Mark Gibney, "The Legal and Ethical Obligations of UNHCR: The Case of Temporary Protection in Western Europe", in Problems of Protection: The UNHCR, Refugees and Human Rights, Nikiaus Steiner, Mark Gibney, and Gil Loescher (eds.), Routledge (2003) 37
36. Michael Barutciski, "A Critical View of UNHCR's Mandate Dilemmas," 14 International Journal of Refugee Law (2002) 365
37. S. Alex Cunliffe and Michael Pugh, "The Politicisation of UNHCR in the Former Yugoslavia" 10 Journal of Refugee Studies (1997) 134
38. Michael Barutciski, "The Reinforcement of Non-Admission Policies in the Subversion of UNHCR: Displacement and Internal Assistance in Bosnia-Herzegovina (1992-1994)" 8 International Journal of Refugee Law (1996) 49
39. Bill Frelick, "Preventing Refugee Flows: Protection or Peril?" World Refugee Survey, U.S. Committee for Refugees (1993).
40. In a news article in Le Monde (29 May 1997), a representative of Medicins sans Frontiers targeted the UNHCR for criticism as head of the UN's repatriation operation for Rwandese refugees from the former Zaire thus: "Instead of standing up for the right to asylum and security guarantees for refugees in Rwanda itself, [UNHCR] is undertaking this repatriation under international pressure." The MSF representative went on to criticize the international community's "understanding" of the Rwandan government whose representatives "are killing refugees by the thousands" and then posed the question: "Should UNHCR bring refugees back to the country of their oppressors in the name of humanitarianism?" For a counterview, see Nicholas Morris, "Protection Dilemmas and UNHCR's Response: A Personal View from within UNHCR" 9 International Journal of Refugee Law (1997) 492. Although the above-noted critical writings about the UNHCR largely relate to policy choices (which of course affect individuals), even in individual cases the Office may be reluctant to get involved if sensitive issues such as claims of national security or relations with or between important donor governments are at stake.
41. Catherine Dauvergne, "Sovereignty, Migration and the Rule of Law in Global Times," 67:4 The Modern Law Review (2004) 588 at 597.
42. The UNHCR is of the view that the non-refoulement principle has acquired the status of customary international law. An authoritative analysis of the scope and application of the non-refoulement principle is found in Sir Elihu Lauterpacht and Daniel Bethlehem, "The scope and content of the principle of non-refoulement: Opinion" in Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, Erika Feller, Volker Türk, and Frances Nicholson (eds.), Cambridge University Press (2003) 87.
43. Jeff Crisp, "No Solutions in Sight: The Problem of Protracted Refugee Situations in Africa" New Issues in Refugee Research Working Paper No. 75, UNHCR (January 2003)
44. "Africa's Refugees: Patterns, Problems and Policy Changes" New Issues Working Paper No. 28, UNHCR (August 2000)
45. also see, Bonaventura Rutinwa, "The End of Asylum? The Changing Nature of Refugee Policies in Africa", New Issues Working Paper No. 5, UNHCR (May 1999).
46. These working papers are available at .
47. For a discussion of refugee protection problems in South Asia, see: Omprakash Mishra and Anindyo J. Majumdar, The Elsewhere People: Cross-Border Migration, Refugee Protection and State Response, Lancer's Books (2003)
48. Manik Chakraborty, Human Rights and Refugees: Problems, Laws and Practices, Deep & Deep Publications Ltd (1998)
49. V. Suryanarayan and V. Sudarsen, Between Fear and Hope: Sri Lankan Refugees in Tamil Nadu, TR Publications (2000).
50. Sweden's record in the asylum field is special, as it has the dubious distinction of being found in breach of the UN Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment more than any other state party to this international human rights instrument. Article 3 of the Convention provides a complementary protection against refoulement for individuals who would face a risk of torture if sent out of a country. Sweden has been found in breach of Article 3 on nine separate occasions, and there are several cases pending. All of these cases involve asylum-seekers who had been rejected by the Swedish authorities. The reason for the high number of decisions against Sweden, as elaborated in the decisions of the supervisory UN Committee against Torture, would appear to be that the Swedish authorities often require a high degree of evidentiary certainty in the asylum applicant's story. A number of cases dealt with by the Committee demonstrate that the immigration authorities often disregard or find as unconvincing evidence showing past torture. Moreover, the Swedish authorities have placed limited importance on an applicant's political activities and the consequences of such in the country of origin for other members of his or her family. See Robin Lööf and Brian Gorlick, "Implementing International Human Rights Law on behalf of Asylum-seekers and Refugees: The Record of the Nordic Countries" New Issues in Refugee Research Working Paper No. no, UNHCR (November 2004)
51. also Brian Gorlick, "The Convention and the Committee against Torture: A Complimentary Protection Regime for Refugees", International Journal of Refugee Law (1999) 479.
52. See for example, The Structure and Functioning of Country of Origin Information Systems: Comparative Overview of Six Countries, Report prepared by the International Centre for Migration Policy Development (August 2004), available at . The countries reviewed in this study are the United Kingdom, Canada, Germany, the Netherlands, Sweden, and Switzerland.
53. Brian Gorlick, "Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status," 15 International Journal of Refugee Law (2003) 357.
54. In the U.K. House of Lords decision of Regina v. Secretary of State for Home Department, Ex Parte Adan, Regina v. Secretary of State for the Home Department, Ex Parte Aitseguer, Judgments of 19 December 2002, available at , Lord Steyn concluded: It follows that, as in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning derivable from the sources mentioned in articles 31 and 32 (of the 1969 Vienna Treaty Convention) and without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can be only one true interpretation of a treaty. If there is disagreement on the meaning of the Refugee Convention, it can be resolved by the International Court of Justice: Article 38. It has, however, never been asked to make such a ruling. The prospect of a reference to the International Court is remote. In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammeled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning. (para 68)
55. Frances Nicholson, "The Common European Asylum System: Haven or Fortress?" publication forthcoming, copy on file with the author.
56. Stephen Castles, Heaven Crawley, and Sean Loughna, States of Conflict: Causes and patterns of forced migration to the EU and policy responses, The Institute for Public Policy Research (2003) at 28.
57. Gary G. Troeller, "Refugees and human displacement in contemporary international relations: Reconciling state and individual sovereignty," in Refugees and Forced Displacement: International Security, Human Vulnerability, and the State, Edward Newman and Joanne van Selm, (eds.), United Nations University Press (2003) 55.
58. Kofi A. Anan, 'We the Peoples': The Role of the United Nations in the 21st Century, Millennium Report of the Secretary-General, (2000) at 45, available at .
59. Elisabeth Sköns et al., "Military Spending" in SIPRI Yearbook 2004: Armaments, Disarmament and International Security, Oxford University Press (2004).
60. Arthur Helton, "Rescuing the Refugees", 81:2 Foreign Affairs (2002) 71 at 77.
61. "Preventing Deadly Conflict - Final Report", Report of the Independent Inquiry into the Actions of the UN during the 1994 Genocide in Rwanda, S/1999/1257 (15 December 1999) at 1.
62. Also see, Samantha Power, A Problem from Hell: America and the Age of Genocide, Basic Books (2002)
63. Romeo Dallaire, Shake Hands with the Devil: Failure of Humanity in Rwanda, Carroll and Graf Publishers (2004).
64. A good overview of the evolution of NGOs in providing protection and assistance to refugees and other displaced people is offered by Elizabeth G. Ferris, "The Role of Non-Governmental Organisations in the International Refugee Regime," in Problems of Protection: The UNHCR, Refugees and Human Rights, Nikiaus Steiner, Mark Gibney, and Gil Loescher (eds.), Routledge (2003) 117.
65. A discussion of the relationship of international human rights and refugee law and the UNHCR's engagement with the UN human rights mechanisms is found in Brian Gorlick, "Human Rights and Refugees: Enhancing Protection through International Human Rights Law", 69 Nordic Journal of International Law (2000) 117
66. also published as UNHCR New Issues in Refugee Research Working Paper No. 30 (October 2000). Also see, Saul Takahashi, "Recourse to Human Rights Treaty Bodies for Monitoring of the Refugee Convention" 20 Netherlands Quarterly of Human Rights (2002) 53
67. Tom Clark, "Rights Based Refuge, the Potential of the 1951 Convention and the Need for Authoritative Interpretation", 16 International Journal of Refugee Law (2004) 584.
68. Joan Fitzpatrick (ed.), Human Rights Protection for Refugees, Asylum-Seekers and Internally Displaced Persons, Transnational Publishers, Inc. (2002).
69. Walter Kälin, "Supervising the 1951 Convention Relating to the Status of Refugees: Article 35 and Beyond", in Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, Erika Feller, Volker Türk, and Frances Nicholson (eds.), Cambridge University Press (2003) 613.
70. Also see, Volker Türk, "UNHCR's supervisory responsibility", UNHCR New Issues in Refugee Research Working Paper No. 67 (October 2002). Under Article 35 of the Refugee Convention, supra note 6, contracting states undertake to cooperate with the UNHCR in the exercise of its functions and shall in particular facilitate its supervisory duty. The UNHCR's supervisory responsibility in respect of the Refugee Convention and its Protocol and other refugee protection instruments is also contained in Article 8(a) of the Statute of the Office of the UNHCR, supra note 31.
71. See for example, B.S. Chimni, "Forced Migration and Human Rights: The Problem with Taking Rights Seriously in an Unequal World", (2003), on file with the author.
72. B.S. Chimni, "Globalisation, Humanitarianism and Refugee Protection" 13 Journal of Refugee Studies (2000) 243 at 257.
73. Ibid., citing I. Brownlie, Principles of Public International Law, 4th ed., Oxford University Press (1990)
74. H.G. Schermers and N.M. Blokker, Institutional Law: Unity within Diversity, Martinus Nijhoff (1995).
75. "Addressing Security Concerns without Undermining Refugee Protection," UNHCR (November 2001) at para. 2, available at .
76. Matthew Gibney, "Security and the Ethics of Asylum after 11 September" 13 Forced Migration Review (2002) 40 at 41, available at .
77. For a discussion of the Rasul v. Bush case decided by the U.S. Supreme Court see Joseph Margulies, "A Prison Beyond Law", The Virginia Quarterly Review (2004)
78. background on the case is also available at the Centre for Constitutional Rights website .
79. Also see, U.K. House of Lords judgment in the case of A(FC) and others (FC) v. Secretary of State for the Home Department, [2004] UKHL 56, available at
80. Regina v. Immigration Officer at Prague Airport and another (Respondents) ex part European Roma Rights Centre and others (Appellants), [2004] UKHL 55, available at .