Coles, The Human Rights Approach to the Solution of the Refugee Problem: A Theoretical and Practical Inquiry (Mar. 1988) (unpublished manuscript, available at the Refugee Law Research Unit, Osgoode Hall Law School, Ontario, Canada). It is therefore necessary to consider the reformulation of the international legal response to the needs of refugees.
The Rejection of Comprehensive Protection
The general content of the drafting history of the convention and the subsequent development in practice can be summarized in three points. Third, and most importantly, states have chosen to take direct control of the refugee determination process and have established an international legal framework that allows the screening of applicants for refugee protection on a range of national considerations.
Strategic Limitations
The states participating in the work of the Ad Hoc Committee on Refugees and Stateless Persons included Belgium, Brazil, Canada, China, Denmark, France, Israel, Turkey, the United Kingdom, the United States and Venezuela. ESCOR Ad Hoc Committee on Statelessness and Related Problems, Summary Report of the Fourth Assembly, at 5 p.m., UN ESCOR Ad Hoc Committee on Statelessness and Related Problems, Draft Report, at 5 p.m., ESCOR Ad Hoc Committee on Statelessness and Related Problems , Summary Report of Second Meeting, at 6 p.m., UN. It should not be based on confusion between the humanitarian problems of the refugees and the mainly legal problems of the stateless, which should be dealt with by a group of legal experts, but which should not be included in the proposed treaty."); see also Declaration of Mr AC.32/S.R Like the French Government, the United States Government believed that the problem of refugees was distinct from that of stateless persons and should be considered separately.").
114 Thus, the international legal rights of stateless persons were established only with the entry into force of the Convention on the Status of Stateless Persons115 in 1960, more than six years after the entry into force of the Refugee Convention. This was [more] an ongoing concern of the world community than an acute situation requiring immediate remedial action."). Statement of the ESCOR Ad Hoc Committee on Statelessness and Related Problems, Summary of Third Meeting, at 10, U.N. Brass of the United Kingdom, Ad UN ESCOR Hoc Committee on Statelessness and Related Problems, Summary of Third Meeting, at 8, UN Convention Relating to the Status of Stateless Persons, Sept.
Promotion of Western Political Objectives
The Establishment of Selective Burden-Sharing
Eurocentric Conventional Focus
136 This opinion prevailed during the consideration of the refugee agreement in the General Assembly, 137 so that a draft convention of universal application was presented to the delegates at the Conference of Plenipotentiaries. Given the many economic rights guaranteed to refugees protected by the Convention, this argument is of questionable validity. Which countries would actually consider extending the benefits of the convention to Arab refugees in Palestine.
It was not until more than fifteen years later that the New York Protocol162 extended the scope of the Convention to refugees from all parts of the world. See Recommendation IV(E) of the Final Act of the 1951 United Nations Plenipotentiary Conference on the Status of Refugees and Stateless Persons, appended to the Convention, supra note 5. If the Convention desired Europeans to settle in overseas countries with a Western civilization, the rights and obligations of the refugees and the host country could be defined.").
Institutional Policies of Containment in the Third World 157
Minimal International Intervention in Protection Decisions
COLaS, supra note 34, under 11 ("The shortcomings of the current regime may mean that [first host states] will feel the full weight of humanitarian obligations, yet will not receive the support they believe is appropriate should be granted by other states."). Since the heyday of direct international control over refugee protection before World War 11,217 there has been a steady decline in the legal authority of the UNHCR, the international authority responsible for refugee protection, to the point that UNHCR is now has little more than an advisory role. in protection decisions.218. International law does not deal with the procedure that states must follow in determining refugee status, nor does it provide for any form of direct international control over the procedures adopted.
Finally, the international refugee regime does not require states to provide asylum or lasting protection to refugees that the state chooses to recognize. Instead, states are only required to prevent a refugee's return to a state where his or her life or liberty would be in danger, and to treat the refugees admitted to the territory of the state in accordance with the international rights regime. Taken together, these components of the modern international protection system ensure that refugee law is subject to minimal international oversight.21 9.
State Control of Refugee Determination
Specifically, international coordinating agencies established before 1950 were empowered to make decisions on refugee status on behalf of participating states (see supra text to notes 49, 53 and 60-64). State responsibilities under the Convention are in the nature of obligations of result, not obligations of conduct or means. In a mild sense, the state obligation lies in the undefined duty of states to "cooperate" with UNHCR.
Hyndman, supra note 204, at 151 (“There is no obligation under the Convention to establish procedures for determining refugee status, and many countries have not done so. The UNHCR does try to encourage uniformity and standard practice , but due to the differences in the administrative structures and general conditions of different countries, this is not easy."). Plender, supra note 201, at age 76 ("[Within the next twenty-five years, the demand for migrant workers in the United States or in Western democracies are unlikely to be as urgent as they were in the immediate post-war period. Under these circumstances, the problem of finding asylum for the refugees is likely to become more acute."); according to INDaP.
Politically Malleable Definitional Framework
Moreover, the determination that certain persons faced "persecution" in their country of origin supported efforts to attribute inappropriate behavior to ideological opponents of the West.237. See, e.g., Grahl-Madsen, supra note 92, at 421 ("If there is political antipathy between the governments of the country of origin and the country of refuge, it may not be too difficult to gain refugee recognition. Coles, Note above 13, in the prevailing strategic concerns of the dominant group obscured the central importance, from a human rights perspective, of freedom of movement for the individual. In a widely held Western view of the time, refugee movements were good, ensuring acceptance countries with the means to attack an adversary as well as the manpower for reconstruction and development.").
The control that states have over refugee protection because of the political subjectivity of the definition is complemented by the definitional focus on an individualized examination of fear in relationship. Some states also continued to resort to much stricter interpretations of the concept of refugee, as defined in the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol. The combined effect of such measures was to frustrate large numbers of people in their attempts to seek asylum from persecution and that even if they met the refugee criteria within the meaning of the 1951 UN Refugee Convention, they were denied the protections enshrined in the Convention.
Screening Based on Domestic Interests
The ease with which the refugee definition can accommodate both encouraging and discouraging refugee claims through the subjectivity of its central criterion creates an important opportunity for states to include other priorities in addition to refugee needs. The precise delineation of the termination and exclusion clauses in the definition, which are stated in general, mostly ambiguous terms, is a matter for administrative officials in each contracting state. Tihey insists on a very precise definition of the persons entitled to this status and reserves the right to determine the status.”249.
It was the intention of the drafters of the Convention to take into account the caveat in the Convention on the right of a State to exclude refugees. France, in particular, argued that states would only adopt generous protection policies if they were given the opportunity to refuse unworthy and unwanted refugees.250 While some delegates pointed to the possibility of abuse by improperly motivated states25 and thus the need to more carefully limiting the scope of these rights independent state action252, the final text of the Convention made no concessions to this criticism. At present, therefore, states can even deny basic protection against return to refugees they consider to be serious criminals or persons who already enjoy adequate protection elsewhere.
Limited Duty
Toward a Critical Appraisal of Refugee Law
This dramatic change can be explained by the incompatibility of the supposed solution to the needs of refugees - safe exile265 - with the acute preoccupation of states to avoid cultural, ethnic, political or economic disharmony within their borders.266 An alternative framework within which the needs of refugees can be addressed together with humanitarian and/or human rights concerns can be found in the regional context. As in the earlier European context, these legal arrangements reflect norms that are deeply part of the social tradition of these regions. Those to be helped were other Europeans, victims of the group's common political and military opponents.
There was adequate protection for asylum seekers in the many regional treaties and conventions Latin American states had acceded to since the late nineteenth century. Similarly, of the 20 Latin American states hosting refugee populations, five (Chile, Cuba, El Salvador, Guatemala and Nicaragua) are responsible for refugee flows to other states in the region. The nature of refugee movements has, of course, changed dramatically since the drafting of the Refugee Convention.
