UNHCR and Forced Migration

Gil Loescher

The Oxford Handbook of Refugee and Forced Migration Studies

Edited by Elena Fiddian Qasmiyeh, Gil Loescher, Katy Long, and Nando Sigona

Oxford Handbooks Online

Abstract and Keywords

This chapter examines the normative agenda of the Office of the United Nations High Commissioner for Refugees (UNHCR) as well as the effectiveness of its efforts to protect refugees within the context of international politics, expanding global mobility regime, and a growing and diverse group of displaced people in need of assistance and protection. It begins with a discussion of the UNHCR’s role in the global refugee regime and how its work has been affected by global politics and the interests of states within the global refugee regime. It then considers some of the key issues and problems UNHCR is likely to face in the future and concludes with some proposals on how to make the agency more effective in addressing the plight of refugees.

Keywords: United Nations High Commissioner for Refugees, refugees, international politics, mobility, protection, assistance

Introduction

The Office of the United Nations High Commissioner for Refugees (UNHCR) was created by the UN General Assembly in December 1950 with a specific mandate to ensure the protection of refugees and to find a solution to their plight.

Following a number of precedents during the interwar period, it was initially set up as a temporary organization with the sole responsibility of addressing the needs of refugees in Europe who had been displaced by the Second World War.

Over time, however, its geographical focus was extended beyond Europe, and it has subsequently become a prominent international organization with global operations and policy concerns.

During the past six decades, the political and institutional contexts of UNHCR’s work have constantly evolved resulting in a number of significant policy changes for the organization. This chapter will discuss UNHCR’s normative agenda as well as the effectiveness of the Office’s work for refugee protection within the context of a changing international political system, an expanding global mobility regime, and a growing and diverse group of displaced people in need of assistance and protection. Finally, the chapter will briefly address some of the key issues and problems UNHCR is likely to face in the future.

UNHCR and the Global Refugee Regime

UNHCR is the UN’s refugee agency and the UN High Commissioner for Refugees enjoys moral prestige as the spokesperson for the world’s displaced. The Office’s 1950 Statute sets out a clear mandate, defining the scope and role of the organization. The Statute defines UNHCR’s core mandate as focusing on two principal areas. First, the Office was created (p. 216) to work with states to ensure refugees’ access to protection from persecution and second, UNHCR works to ensure that refugees have access to durable solutions through reintegration within their country of origin or by permanent integration within a new country.¹

UNHCR has also become the principal organization within the global refugee regime. The centrepiece of the regime is the 1951 Convention relating to the Status of Refugees which provides a definition of who qualifies for refugee status and sets out the rights to which all refugees are entitled. The 1951 Convention also explicitly identifies UNHCR as having supervisory responsibility for its implementation. The Office, therefore, has responsibility for monitoring and supporting states’ compliance with the norms and rules that form the basis of the global refugee regime.

Despite these provisions in its Statute and the 1951 Convention, states ensured that the newly created UNHCR had a limited role. They initially restricted the Office’s work to individuals who were refugees as a result of events occurring before 1951. The refugee instruments also focused exclusively on refugees to the exclusion of other displaced persons.

Furthermore, states originally required UNHCR to be a small, low-budget, and temporary organization that would play an exclusively legal advisory role rather than engaging in the provision of material assistance. Yet, from these inauspicious beginnings, the Office has over time expanded and adapted to become a permanent global organization with an annual budget of some $3.5 billion and over 7,000 staff in more than 125 countries, offering protection and assistance not only to refugees but also to IDPs, stateless persons, and other displaced people.

At key turning points in the past six decades, the Office has responded to changes in the political and institutional environment within which it works by reinterpreting and broadening its role and mandate. From the 1960s on it

expanded beyond its original focus on Europe to become a global organization. UNHCR shifted its focus from providing legal protection to refugees fleeing communist regimes in Eastern and Central Europe and became increasingly involved in refugee situations in the global South. During the 1960s, violent decolonization and post-independence strife

generated vast numbers of refugees in Africa which required it to take on an ever greater role in providing material assistance. During the 1970s, mass exoduses from East Pakistan, Uganda, and Indochina, highly politicized refugee crises in Chile, Brazil, and Argentina, and the repatriation of refugees and internally displaced persons (IDPs) in southern Sudan expanded UNHCR’s mission around the globe. The 1980s saw the Office shift away from its traditional focus on legal protection and assume a growing role in providing assistance to millions of refugees in camps and protracted situations in South-East Asia, Central America and Mexico, South Asia, the Horn of Africa, and Southern Africa. During the post-Cold War era, UNHCR assumed a wider role in providing massive humanitarian relief in intra-state conflicts and engaging in repatriation operations across the Balkans, Africa, Asia, and Central America. The late 1990s and early twenty-first century have seen UNHCR take on ever greater responsibility for the victims of some major natural disasters and to assume formal responsibility for the protection of IDPs. The expansion of the Office’s work to include these new areas has often been controversial, and there have been concerns that UNHCR has sometimes acted in ways that contradicted or undermined its refugee protection mandate.

(p. 217) Within this process of adaptation and expansion, UNHCR has had limited political power. In the international refugee regime, states remain the predominant actors. But this does not mean that UNHCR is entirely without means either to uphold its normative agenda or exercise a degree of autonomy. UNHCR has at times assumed power beyond what states originally intended upon its creation. In the past, most High Commissioners and their executive staff have realized that in order to shape state behaviour they had to exert their moral authority and leadership skills and use the power of their expertise, ideas, strategies, and legitimacy to alter the information and value contexts in which states made policy. The Office has tried to project refugee norms into an international system dominated by states that are, in turn, driven by concerns of national interest and security. Successful High Commissioners have convinced states that they can ensure domestic and inter-state stability and can reap the benefits of international cooperation by defining their national interests in ways compatible with protection norms and refugee needs. In promoting its normative agenda, UNHCR is further supported by non-governmental organizations (NGOs), which act as norm entrepreneurs through developing and disseminating new norms and through political advocacy and persuasion.

UNHCR not only promotes the implementation of refugee norms; it also monitors compliance with international standards. Both the UNHCR Statute and the 1951 Convention authorize the organization to ‘supervise’ refugee conventions. This opens up the possibility for the UNHCR to make judgements or observations about state behaviour under refugee law and to challenge state policies when they endanger refugees. For example, in recent years, UNHCR has given legal opinions on matters such as access to protection and detention of asylum seekers before regional and international courts such as the EU Court of Justice and the European Court of Human Rights and elsewhere.

For most of its history, the Office has also acted as a ‘teacher’ of refugee norms. The majority of the UNHCR’s tactics have mainly involved persuasion and socialization in order to hold states accountable to their previously stated policies or principles. For example, High Commissioners have frequently reminded Western states that as liberal democracies and

open societies they are obliged to adhere to human rights norms in their asylum and refugee admissions policies.

Because the UNHCR possesses specialized knowledge and expertise about refugee law, states at times have deferred to the Office on asylum matters. This was particularly the case before the 1980s when the UNHCR had a monopoly on information about refugee law and refugee movements. During the early decades of its existence, the Office enjoyed maximum legitimacy as it simultaneously tried to define the refugee issue for states, to convince governments that refugee problems were soluble, to prescribe solutions, and to monitor their implementation.

In recent decades, however, states have questioned UNHCR’s moral authority or simply ignored UNHCR in the interest of pursuing more restrictive asylum and refugee policies. As the scope of the global refugee regime has increased, efforts to ensure international solidarity and burden sharing have been more problematic. For example, in recent years the global resettlement of refugees has declined and local integration in the global South remains exceedingly difficult.

States have often sought means of pursuing their interests in the global refugee regime by attempting to shift responsibility to other actors and by (p. 218) avoiding additional responsibilities. Nevertheless, while its authority and legitimacy has consequently declined, the Office still tries to influence how states respond to refugees. During 2001–2, for example, UNHCR initiated the Global Consultations on International Protection which resulted in the adoption of an Agenda for Protection. Moreover, since 2007 the High Commissioner’s annual dialogues on Protection Challenges have provided a forum for states, NGOs, and experts to discuss action plans on issues such as mixed migration, burden sharing, protracted refugee situations, urban refugees, and environmental displacement. Finally, UNHCR provides training and promotes guidelines and standards for the international protection of refugees in a variety of forums involving not only states but also experts, NGOs, and regional and local actors around the world.

UNHCR has not only acted as a transmitter and monitor of refugee norms but also socialized new states to accept the promotion of refugee norms domestically as part of becoming a member of the international community. This

socialization occurred first in the 1960s and 1970s in the newly independent countries of Africa and Asia and later in the 1990s in the republics of the former Soviet Union. The political leaders of most newly independent governments were concerned about their international image and reputation and sought international legitimacy through cooperation with the UNHCR. In addition, High Commissioners have repeatedly tried to link the refugee issue to states’ material interests.

Many new states, particularly in the global South, were willing to adapt their behaviour to UNHCR pressures for purely instrumental reasons. International humanitarian assistance has sometimes provided resource-strapped governments with the means to cope with influxes of refugees. In recent decades, especially in response to protracted refugee situations, the Office has even taken on the role of a surrogate state for both refugees and local host populations in remote areas of countries where government authorities have little reach. Through a mixture of persuasion, socialization, and material incentives, UNHCR has communicated the importance of refugee norms and convinced many new states that the

benefits of signing the refugee legal instruments and joining the UNHCR Executive Committee—either as a member or an observer—outweighed the costs of remaining outside the global refugee regime. Thus, while UNHCR is constrained by states, the notion that it is passive in the global refugee regime, with no independent agenda of its own or a mere instrument of states, is not borne out by the empirical evidence of the past 60 years.

Constraints on UNHCR: Changing State Interests and Political Processes

While UNHCR has demonstrated its ability to act independently, its activities and evolution have been defined and, at times, constrained by global politics and the interests of states within the global refugee regime. The organization is dependent on voluntary (p. 219) contributions to carry out its work. This gives significant influence to a limited number of states in the global North who have traditionally funded the bulk of UNHCR’s operational budget. At the same time, UNHCR works at the invitation of states to undertake activities on their territories and must therefore negotiate with a range of refugee hosting states, especially in the global South. UNHCR is consequently placed in the difficult position of trying to facilitate cooperation between donor states in the global North and host states in the global South. At the same time, the Office works within changing global contexts, with changing dynamics of displacement, and with a range of partners, both within and outside the UN System. The humanitarian world is now characterized as a competitive

marketplace which involves a vast range of actors each with their own mandate, institutional identity, and drive to protect their own interests. These political and institutional constraints affect the functioning of the global refugee regime and the ability of UNHCR to fulfil its mandate.

While UNHCR frequently finds itself caught between the norms that underpin the global refugee regime and the competing interests of states and other actors, these dynamics are further influenced by changes in world politics. For

UNHCR and Forced Migration

example, the end of the Cold War not only presented UNHCR with an unprecedented opportunity to resolve some of the world’s longest-standing refugee situations through large-scale repatriation programmes but also presented new challenges to the organization. In the early 1990s, the international community failed to effectively respond to a number of new intra-state conflicts and refugee crises, including the collapse of Somalia, the break-up of the former Yugoslavia, and genocide in Rwanda. Each of these crises witnessed significant and complex dynamics of forced displacement, and UNHCR was called upon to play a more prominent role. By engaging more directly in debates on new sources of national, regional, and international insecurity and by retooling itself to provide humanitarian assistance in intra-state conflicts, UNHCR sought to encourage sustained international action on behalf of refugees. Instead, governments often used humanitarian relief as a substitute for political action to address the root causes of mass displacement. This response placed a significant strain on UNHCR’s operational ability to respond while upholding its mandate of ensuring protection.

Since the 1990s, it has become increasingly difficult for UNHCR to persuade states to host refugees and efforts to strengthen international cooperation have rarely been successful. In the North, the period since the end of the Cold War has been marked by a shift from asylum to containment where Western states have largely limited the asylum they offer to refugees and have focused on efforts to contain refugees in their region of origin. These measures included non- arrival policies, such as carrier sanctions and visa requirements, diversion policies, such as safe-third country agreements, an increasingly restrictive application of the 1951 Convention, and a range of deterrent policies, such as detention of asylum seekers and the denial of social assistance.

These developments have placed a significant strain on asylum countries in the South which continue to host the majority of the world’s refugees. From the 1990s, states in the developing world also began to place restrictions on asylum.

Some states closed their borders to prevent arrivals, pushed for the early and often unsustainable return of (p. 220) refugees to their country of origin, and, in exceptional cases, forcibly expelled entire refugee populations. More generally, states have been placing limits on the quality of asylum they offer to refugees, by denying them the social and economic rights contained in the 1951 Convention, such as freedom of movement and the right to seek employment.

Many states in the South now require refugees to remain in isolated and insecure refugee camps for protracted periods, cut off from the local community, and fully dependent on international assistance. Millions of other refugees are stranded in sprawling urban areas with virtually no assistance and no livelihood.

The crisis of asylum in both the North and South has confronted UNHCR with a nearly impossible task. While mandated by the international community to ensure the protection of refugees and find solutions to their plight, UNHCR cannot fulfil this task without the cooperation of states. As the global crisis of asylum emerged, states largely excluded the Office and increasingly devised their own responses to insulate themselves from the growing number of refugees seeking access to their territories. The lack of cooperation by states, coupled with a global impasse over cooperation between Northern donor countries and Southern host states, has significantly frustrated UNHCR’s activities in recent years.

Key Policy Challenges: UNHCR in the Broader World Community

UNHCR is unable to pursue its mandate independently of donor and host states. It is dependent on voluntary

contributions from donors to carry out its work and it relies on host states for permission and cooperation to carry out its programmes. Thus the interest and priorities of donor and host states have consequently played a significant role in the work and evolution of the organization.

UNHCR’s relationships with states have changed significantly over time. The most important of these relationships remains the Office’s relationship with donors, who control the direction of UNHCR’s work through the tight control of the organization’s resources. At the same time, the Office has increasingly become a complex international organization with a truly global presence. In a wide range of operational contexts in host states, the Office must respond to local political realities, dynamics, and interests as it seeks to advance its mandate.

UNHCR’s relationship with the wider UN system has also become increasingly important. In the past, the UN General Assembly played a crucial role in the expansion of UNHCR’s mandate. For example, UNHCR turned repeatedly to the General Assembly throughout its early history to authorize the Office’s involvement in emerging refugee situations in Africa and Asia. Notwithstanding this support, a critical problem today is the widespread perception within the UN system that refugees are UNHCR’s ‘problem’. This perception, likely a result of the territoriality and competition between (p.

221) UN agencies, has resulted in the reluctance of other UN agencies to more fully engage in refugee issues and has

frustrated recent efforts to articulate a more comprehensive and holistic engagement at the UN level in issues relating to refugees.

Another problem relates to the Executive Committee of the Program of the United Nations High Commissioner for Refugees (EXCOM) which currently has 87 states as members. EXCOM is responsible for approving the Office’s budget and programme, for setting standards and reaching conclusions on international refugee protection policy issues, and for providing guidance on UNHCR’s management, objectives, and priorities. It is the only specialized multilateral forum at the global level responsible for contributing to the development of international standards relating to refugee protection.

In recent years, EXCOM has become too large and politicized and it is no longer an effective decision-making body. Not only are there too many participants, but the issues are complex, divisive, and numerous, and meetings are seldom a forum for organizational guidance. In addition, the increasing divide between industrialized states and developing countries makes international consensus of refugee matters exceedingly difficult to achieve. As a consequence of the breakdown in trust and cooperation, member states have failed for the first time since the creation of EXCOM in 1958 to adopt a Conclusion over the past few years.

Given the shortcomings of EXCOM as an authoritative decision-making body, individual donor governments and some key host states have come to establish the priorities that guide UNHCR’s programme. In the early years of the Office, when its work was primarily focused on legal protection in Europe, UNHCR operated on a very modest budget. It was not until the global expansion of the Office in the 1970s and 1980s that UNHCR’s budget began to increase dramatically.

Contributions from the UN Regular Budget now account for less than 3 per cent of UNHCR’s Annual Budget. As a result, UNHCR today is almost exclusively dependent on voluntary contributions from states to carry out its programmes.

This dependence is compounded by the fact that funding has tended to come from a relatively small number of so-called traditional donors in the industrialized world, with around three-quarters of its budget coming from its top ten donors. The unpredictability of funding and the concentration of donorship have placed UNHCR in a precarious political position.

While the Office has attempted to safeguard the integrity of its mandate by being seen to be politically impartial, its ability to carry out its programmes depends upon its ability to respond to the interests of a relatively small number of donor states.

The influence of states is increased through their ability to specify how, where, and on what basis their contributions may be used by UNHCR. This practice, known as ‘earmarking’, remains commonplace. According to the 2011 UNHCR Global Report, 47 per cent of contributions to UNHCR that year were ‘tightly earmarked’ for specific countries and activities, while 26 per cent were ‘broadly earmarked’ for specific geographical regions and only 24 per cent came with no restrictions. The practice of earmarking allows donors to exercise considerable influence over the work of UNHCR as programmes considered important by donors receive considerable support, while those (p. 222) deemed less important receive less support. For example, during the late 1990s, while the international community focused attention and resources on the crisis in Kosovo and East Timor, conflict and refugee crises in Africa were virtually ignored. This pattern continues over a decade and a half later as donor governments still give vastly disproportionate amounts of aid to a few well-known crises and trivial amounts of aid to dozens of other refugee programmes.

The fact that donors largely contribute to UNHCR on the basis of their own perceived interests makes the concentration of donors all the more problematic. In 2012, the top ten donors were the major industrialized states, with all other countries accounting for less than a quarter of contributions to UNHCR. As a result, the interests of a relatively small number of Northern states have been highly influential in determining UNHCR’s activities.

The significant role played by a small number of donors and their interests places UNHCR in a challenging political position. Perhaps the most damaging effect of a concentration of donors is the perception by Southern states that UNHCR is beholden to a relatively small number of Northern donors and therefore is tied to their interests. These perceptions have further frustrated efforts at ensuring international cooperation within the global refugee regime.

Reconciling the need to have an autonomous influence on states and supervising the refugee regime with being responsive to donor interests has sometimes been a difficult balancing act for the Office.

Key Policy Challenges: The Refugee Regime Complex

In recent decades the work of UNHCR has been further complicated by the dramatic increase in new forms of international cooperation at the bilateral, regional, and international levels in the areas of labour migration, international

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