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Maja Janmyr, The 1951 Refugee Convention and Non-Signatory States: Charting a Research Agenda, International Journal of Refugee Law, Volume 33, Issue 2, June 2021, Pages 188–213, https://doi.org/10.1093/ijrl/eeab043
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Abstract
At the end of 2020, 149 States were party to the 1951 Convention, its 1967 Protocol, or both. Forty-four members of the United Nations, however, were not party to either of these core instruments. What is the influence of the 1951 Refugee Convention in non-signatory States? How do non-signatory States engage with, and help to create, the international refugee regime?
Taking these questions as its starting point, this article aims to chart a new research agenda focusing on the relationship between non-signatory States and the 1951 Convention. It argues that a closer examination of this relationship is necessary to make an informed opinion about the relevance of the 1951 Convention more broadly. By bringing this dimension to the study of international refugee law, it thus seeks to disrupt the emphasis on signatory States in contemporary discussions of the relevance and importance of the 1951 Convention.
More concretely, the article argues that the Convention continues to structure States’ responses to refugees, and plays a central role not only in States that are party to the Convention, but also in key non-signatory States. The article details the many ways in which international refugee law norms are spread and used in non-signatory States, and how, by being present and active in global fora such as the UNHCR Executive Committee, and in negotiating soft law instruments drawing on the Convention, these States also participate in the evolution and interpretation of international refugee law.
1. INTRODUCTION
Since its inception, the 1951 Convention relating to the Status of Refugees (and its 1967 Protocol)1 has been seen as central to scholarship on refugee and asylum issues. Despite this recognition, in the past decade the relevance and utility of the Convention have repeatedly been called into question, not infrequently by State actors seeking to limit their obligations towards refugees.2 As the Convention celebrates its 70th anniversary in 2021, the thorny issue of the importance and the influence of the Convention is at the forefront of many scholarly and political debates.
Most of these discussions, however, focus on States that are parties to the 1951 Convention, disregarding entirely the relationship between the international refugee regime – that is, the legal norms and supporting institutions focused on the protection of refugees – and non-signatories to the Convention. In the literature, Jones aptly describes this state of affairs, noting that ‘the international refugee regime views as an exception the large number of States (both hosting and producing much of the global refugee population) that are not party to its cornerstone treaty’.3 These States’ experiences of, and relation to, international refugee law have only rarely been considered to warrant closer examination. By charting a new research agenda, this article is an attempt to remedy this arguably biased approach and to bring non-signatory States into the ongoing debates about the past and future of the 1951 Convention.
At the end of 2020, 149 States were party to the 1951 Convention, its 1967 Protocol, or both. Forty-four members of the United Nations (UN), however, were not party to either of these core instruments. These non-signatory States are found predominantly in the Middle East and in South and Southeast Asia. In the Middle East region, only Iran, Israel, Egypt, and Yemen are party to the Convention, while major refugee-producing and refugee-hosting States such as Iraq, Lebanon, Jordan, and most States in the Gulf region are non-signatories.4 Important non-signatory States in South and Southeast Asia include India, Bangladesh, Pakistan, Sri Lanka, Malaysia, and Indonesia. Non-signatory States are found in other regions of the world, also – for example, States such as Eritrea, Libya, Mongolia, and Cuba. Uzbekistan is the only Commonwealth of Independent States (CIS) country that is not a party to the 1951 Convention, while Guyana is the only non-signatory State in South America.
This article argues that a closer examination of the relationship between the international refugee law regime and non-signatory States is necessary to make an informed opinion about the relevance of the 1951 Convention more broadly. Thus, non-signatory and signatory States need to be considered in parallel. In building this argument, the article discusses the various ways in which non-signatory States relate to the 1951 Convention, allowing us to re-examine the often ‘assumed’5 central position of the Convention for global refugee protection. More concretely, it proposes a global research agenda that asks: How do non-signatory States engage with, and help to create, the international refugee regime? And, what is the influence of the 1951 Refugee Convention in non-signatory States?
The article sketches out a new research agenda examining the influence of the 1951 Convention on the behaviour of non-signatory States, and the ways in which they engage with and develop international refugee law. As such, it does not purport to provide a full account of the many ways in which the Convention is (or is not) relevant in non-signatory States. Rather, the aim is to refocus the inquiry by bringing this dimension to the study of international refugee law, and to instigate debate and interest in how non-signatory States can be brought into the conversation about the function and the impact of international refugee law more generally.
Following this introduction and a brief discussion of the scholarship on the spread of international refugee law norms, the article proceeds in four main parts. Part 2 examines the drafting process of the 1951 Convention and the place of non-signatory States in contemporary scholarship on international refugee law. Next, part 3 discusses the state of accession to the Convention and how non-signatory States justify their non-ratification. This part also includes a discussion of protection conditions in signatory versus non-signatory States. Part 4 interrogates how the United Nations High Commissioner for Refugees (UNHCR) functions in non-signatory States, and how international refugee law norms are spread and used in these States. Before concluding, part 5 focuses on how non-signatory States participate in the development of international refugee law by being present and active in global fora, such as the UNHCR Executive Committee, and in negotiating soft law instruments, such as the New York Declaration for Refugees and Migrants and the Global Compacts.
1.1 The spread of international refugee law norms
How is the influence of the 1951 Convention in non-signatory States, and the ways in which these States engage with international refugee law, best examined? As Juss has observed regarding norms and transnational norm-making actors:
Who makes the ‘norms’ and who are the ‘actors’ making them, is a question rarely addressed in mainstream works of refugee law. Neither is it asked how ‘norms’ in refugee law evolve under the influence of transnational actors and who the new ‘norm entrepreneurs’ are.6
In the study of non-signatory States, we may nonetheless build upon the existing, albeit limited, scholarship on the diffusion of refugee law and transnational refugee law.7 This literature has, for example, evaluated the extent to which European legal norms of refugee protection have been emulated in other parts of the world by focusing first on influence, and then on the processes whereby emulation of the European protection regime has occurred.8 As an extension of this, we can also draw inspiration from the broader body of scholarship on the global spread of human rights norms more generally.9 Norms, in this regard, can be seen as a ‘standard of appropriate behaviour for actors with a given identity’,10 while norm entrepreneurs, then, are key in persuading States to adopt new norms.11
By examining the practice of, and interaction between, actors on a global, national, and local level more closely, we may gain a deeper and more nuanced understanding of the interplay between international refugee law and non-signatory States. Of particular relevance to a research stream focusing on non-signatory States is, perhaps, the literature highlighting how the spread of norms usually involves processes of socialization and internalization.12 In this regard, Koh’s notion of ‘transnational legal processes’ allows a more precise focus on the socialization processes of legal argument and doctrine.13 This view sees State behaviour as influenced by interactions both within the domestic system and between the domestic and international systems. Of specific interest to international refugee law, this theory counters State-centric accounts of these processes by introducing a different set of actors, fora, and transactions, allowing us, for example, to capture actors as fundamentally different from one another as UNHCR, State diplomats, local non-governmental organizations (NGOs), legal aid providers, domestic courts, and universities.
The socialization approach may thus provide explanation not only to the question of why States ratify or do not ratify the 1951 Convention, but also to issues relating to how the 1951 Convention influences non-signatory States and, vice versa, how non-signatory States influence international refugee law. More precisely, it allows us to ask questions such as: what are the social mechanisms that help make the 1951 Convention matter in non-signatory States? Following Koh, norms are internalized in microprocesses of social influence,14 and understanding these microprocesses, the article argues, is crucial to properly understanding the function of international refugee law. The remainder of the article highlights key issues and questions that are particularly apt for an analysis drawing on these approaches.
2. NON-SIGNATORY STATES AS HISTORICAL AND CONTEMPORARY ‘EXCEPTIONS’
2.1 Drafting the 1951 Convention
The States that today constitute the majority of non-signatories to the 1951 Convention were in their capacity as ‘non-European’ already seen as ‘exceptions’ during the period in which the Convention was drafted – a process that began with the UN General Assembly Resolution 8(I) of 12 February 1946 and concluded with the adoption of the treaty on 28 July 1951 by the UN Conference of Plenipotentiaries.15 Indeed, during the drafting process, many States of the global South disagreed with the Convention’s proposed lack of universal applicability,16 and scholarship focusing on this process has long pointed to the many ways it – and the resulting Convention – failed to reflect a reality beyond Europe.
As Hathaway has stressed, the Convention was never developed to respond to global refugee problems; rather, it served Eurocentric needs and was a direct product of powerful States’ interests dominating the drafting process.17 In this sense, and as Aleinikoff has argued, ‘[i]t is possible to characterize the 1951 Convention as a regional instrument whose universalistic underpinnings and possibilities were brought to fruition with the accession of scores of non-European nations and adoption of the 1967 Protocol’.18 Chimni furthermore speaks of a ‘myth of difference’ at the time of drafting that presented non-European refugees as radically different from European refugees and therefore requiring solutions outside the Convention.19 By aiming to exclude non-European, non-white refugees, as Achiume has argued, the Convention ‘by design and effect racialized the first international legal definition of a refugee’.20
That said, while many of today’s non-signatory States were not yet independent at the time of the Convention’s drafting, several other non-signatory States – Lebanon, Saudi Arabia, Syria, Iraq, Pakistan, and India – did participate at various stages. An obvious task for a refugee historian interested in non-signatory States would thus be, through archival research, to interrogate more closely the stance and approaches taken by the individual States (and their representatives) that participated in the Convention’s drafting, but nonetheless chose not to ratify the Convention.21 Relatedly, there is a need for legal historical research into the circumstances of decolonization and State succession to the Convention.22
2.2 Geographical limitations
The limitation to Europe was removed during a highly politicized plenary session of the Third Committee of the General Assembly and, at the Conference of Plenipotentiaries, a (voluntary) geographic limitation was developed in its final form.23 Article 1B, paragraph 1(a), expressly asks States to make a declaration at the time of signature, ratification, or accession, specifying whether they intend to apply the Convention with or without the geographical limitation. As Schmahl has noted, ‘the intention was to distribute the European refugee burden without any binding obligation to reciprocate by way of the establishment of rights for, or the provision of assistance to, non-European refugees’.24 In this sense, she has further argued, ‘two categories of contracting parties are created depending on their will to recognize refugees covering the whole world or Europe alone’.25 While 25 States have made use of this option in the past, today, only four States parties maintain the geographical limitation: Turkey, Madagascar, Monaco, and the Democratic Republic of the Congo.
It is worth noting that while UNHCR was created around the same time as the Convention, the refugee definition in the UNHCR Statute did not limit UNHCR’s responsibilities for protecting refugees only to European refugees.26 In addition, while the 1967 Protocol formally universalized the refugee definition, as Hathaway has argued, this in fact aided the exclusionary system by retaining – rather than discarding – a limited, Eurocentric definition of the conditions that would qualify individuals for refugee status.27
2.3 Bias in the evolution and discussion of international refugee law
This twofold and overlapping bias – a general bias against States in the global South, enforced by a disregard of non-signatory States, most of them situated in the global South – is not limited to the formation of the Convention, but is evident also in the evolution of international refugee law more generally. Achiume, for example, has pointed to the failure of addressing the Convention’s oppressive, colonial roots and contemporary forms of discrimination and inequality,28 while Chimni has condemned the omission of critical Third World perspectives from discussions on international refugee law.29
Cantor furthermore has spoken of ‘the international and Western bias’ in the study of international refugee law, arguing that any recourse to national refugee law contains a strong bias towards the practice of certain States such as Australia, Canada, New Zealand, the United States, and countries in Western Europe.30 These States, he notes, host a miniscule portion of the world’s refugees, and their jurisprudence represents just a fraction of global refugee law practice. In contrast, the practice of States in the global South ‘rarely feed[s] back into scholarship on global refugee law and tends instead to be treated in isolation, often as an exception to the “true” international form of refugee law’.31 As Cole has argued, it seems that a ‘methodological nationalism’ in which ‘only certain nations count’ prevails in academic analyses of refugees and, through their work, scholars perpetuate the normative and geographical parameters established by the 1951 Convention.32 It is also worth noting that many of the regions in which being a non-signatory is common have well-established scholarly and legal communities that do not use English as a first or foremost language in their dealings with matters of refugee protection.
This article argues that this environment risks nurturing broad observations about the role of international refugee law in non-signatory States. In the Middle East, for example, it has been argued that it is ‘nearly impossible for the state to adopt international refugee law’ and that ‘international protection does not exist’.33 In the Southeast Asian context, claims have similarly been made of an ‘absence of refugee law’ altogether.34 Processes and approaches such as these have arguably contributed to the fact that much of the core literature in international refugee law either sidesteps the question of non-signatory States, or addresses it only in passing.
Recent scholarship has sought to redress this historical elision, with newer mainstream literature on international refugee law making a commendable effort to be truly global in scope.35 In the same vein, it is encouraging to see a growing body of scholarship focusing on exploring the local, alternative forms of refugee protection that lie outside the scope of the international refugee regime.36 As Juss has argued in his push for formal recognition of a body of ‘Transnational Refugee Law’ (TRL), ‘it is high time … for refugee law to be seen as an eclectic, diverse, multifarious and amorphous corpus of law and practices’.37 This article aims to contribute to this intellectual direction by bringing in actors and processes that have largely been excluded from the dominant approaches. The remainder of the article is thus concerned with highlighting the relationship between non-signatory States and the 1951 Convention.
3. THE 1951 CONVENTION: THE STATE OF RATIFICATION
3.1 UNHCR’s duty to promote accession
Promoting accession to the 1951 Convention is a key element of UNHCR’s international protection mandate.38 In implementing this task, UNHCR’s strategy has included everything from global ratification campaigns – such as the 1998 campaign seeking to secure ‘universal’ accession to the Convention by the year 200039 – to more targeted lobbying efforts made towards individual non-signatory States. Accession to the Convention, UNHCR has argued, is crucial for a number of reasons, not least because ‘accession means better protection’.40 A typical argument in favour of accession is often formulated in the following way – in this particular case, targeting Guyana:
Accession greatly facilitates UNHCR’s task of mobilizing international support to address refugee situations that may arise in any country. UNHCR believes that it is necessary to broaden the base of State support for these refugee instruments, ensuring that the protection provided to refugees is more universal in scope and the burdens and responsibilities of governments are equitably distributed and consistently applied. Accession to the 1951 Convention and establishment of a national legal framework would provide a clearer basis for the Government of Guyana to provide refugees with international protection and a mechanism that enables the appropriate engagement of relevant international organizations like UNHCR.41
Sometimes, however, the arguments put forward by UNHCR encouraging State accession are more context-specific, as in the case of Bangladesh, where it is argued that accession would:
1) [provide] a clearer basis for the Government of Bangladesh to provide refugees with international protection and allow the Government to deal with issues related to asylum in a structured manner
2) facilitate the mobilization of international support, so as to alleviate the burden and responsibility primarily shouldered by Bangladesh in hosting refugees
3) formally recognize Bangladesh’s decades-long hospitality and solidarity towards refugees from Myanmar and underline the importance attached by Bangladesh to cooperate with the international community in efforts to finding solutions for refugees.42
The ‘universal’ accession to the 1951 Convention sought by UNHCR in the late 1990s has, nevertheless, proven almost impossible to achieve. New accessions are few and far between. In the first 10 years of the Convention, 27 State ratifications were made; since 2006, however, only two States – Nauru (2011)43 and recently independent South Sudan (2018)44 – have acceded to the Convention. Closer scrutiny of UNHCR’s efforts to promote the Convention – globally and locally – and the particular circumstances of individual State accessions,45 is long overdue and sorely needed.
In this respect, it would be of interest to explore more closely the cases where State accession to the 1951 Convention appeared to be on the horizon, but circumstances nonetheless caused States to backtrack on their intention to accede. One example is Lebanon, where accession to the Convention was a topic of ‘serious consideration in the country’, but where any such move came to an abrupt halt in July 2006 when the armed conflict between Israel and Lebanon’s Hezbollah increased political tensions.46 In Mongolia, UNHCR similarly reported that a major step towards accession was made when Cabinet deliberations affirmed such accession, and where the government recommended the issue to be passed for review by the National Security Council in 2009.47 Five years later, UNHCR noted that any movement towards Mongolian accession had come to a standstill.
The national process in Indonesia is also noteworthy in this regard. In 1999, the then Indonesian Foreign Minister expressed the hope that Indonesia would be able to accede to the Convention ‘at the right time in the near future’.48 Around the same time, the Indonesian Department of Justice and Human Rights established an inter-ministerial working group to study different aspects and the implications of possible accession; in 2000, the working group concluded that the Convention should be accepted by Indonesia, with certain reservations. Accession to the Convention was also included in the 2004 governmental ‘National Plan of Action of Human Rights 2004–2009’. Indonesia has not (yet) acceded to the Convention. Arguably, much can be learned about the (non-)workings of the 1951 Convention by closer examination of cases such as Indonesia, Mongolia, and Lebanon.
Also of interest is the role played by the wide range of transnational and local actors – additional to UNHCR – engaged in these processes. Such legal mobilization includes efforts by UN bodies, such as the Committee on the Rights of the Child (CRC), the CEDAW Committee, and the CAT Committee, as well as processes such as the Human Rights Council’s Universal Periodic Reviews.49 In Lebanon, for example, the discussions of Lebanon’s accession to the Convention were, perhaps surprisingly, not led by UNHCR but rather by other UN human rights bodies.50 One can rightly ask if this was a calculated tactic or merely circumstance. In other cases, local actors have been prominent in pushing towards accession. The Indian National Human Rights Commission, for example, has repeatedly advocated for Indian accession and for the government to enact national refugee protection legislation.51
3.2 Explaining non-accession
Why are non-signatory States unwilling to accede to the 1951 Convention? Some regionally specific observations have been made in regard to States in the Middle East, Southeast Asia, and South Asia, but, in general, little is known about the precise explanations – and seemingly evolving positions – as to why individual States are unwilling to accede to the Convention.
In the context of the Middle East, a common explanation for the lack of accession to the Convention is that Arab States do not wish to offer permanent residence, despite their willingness to host large numbers of refugees.52 The ‘Palestinian issue’ has been indicated as the main hindrance, with host countries such as Lebanon and Jordan fearful that ratification of the Convention would promote local integration and potentially ‘upset the sensitive demographic and socio-economic balance’.53 In addition, there is a perception that an obligation to integrate is contrary to the Palestinian right to return.
As Janmyr and Stevens have noted,54 however, many Arab States participated in drafting the Bangkok Principles on the Status and Treatment of Refugees,55 which contains similar principles to those of the international instruments on refugees. As argued by Al Fallouji, the problem may be due, ‘not to the essence of the principles but to procedural and formal difficulties’.56 The author’s research in Lebanon equally suggested a number of additional reasons for this position – in Lebanon, not only is there a widespread and real, or simply politically expedient, uncertainty as to the obligations that come with the Convention, but the responsibility-shift for refugees from the host State to UNHCR also makes Lebanon less inclined to accede to the Convention.57 In addition, Lebanese government officials and policymakers consider accession to be superfluous since Lebanon already has various human rights obligations towards refugees by virtue of its ratification of other human rights instruments.
In the context of South and Southeast Asia, a range of scholars have attempted, in past decades, to explain these States’ reluctance to accede to the 1951 Convention. Davies has argued that limited Southeast Asian involvement in the drafting of international refugee law has led Asian States to reject the Convention as it is perceived to promote Eurocentric refugee recognition practices.58 This argument has been supported by, among others, Sen, who makes the claim that South Asian States believe that the Convention was framed by a select group of (European) States to suit their own interests.59 Oberoi has similarly argued that South Asian States’ refusal to accede to the Convention originated in the view that UNHCR was an instrument of the Cold War, and consequently not relevant to the situation of the Indian subcontinent within the international system.60 In addition, she argued that:
South Asian governments maintain that their reluctance to accede to the Convention stems from the fact that it does not cater to situations of mass influx or to mixed flows of migrants, both of which characterize forced population flows in this region. In addition, they claim that the Convention represents an imbalance between the rights and obligations of source and receiving countries, and that the principle of international burden sharing is inadequately institutionalized within the regime.61
While arguments such as these have important explanatory merit, nonetheless a closer examination is needed of the particular circumstances of each South Asian non-signatory State – at a particular moment in time but also over time – and the processes and discussions that are had at the local level. The national developments towards accession seen in some non-signatory States are, as discussed earlier in this section, are a strong indication that State positions vis-à-vis accession are not necessarily fixed. Different junctures of history may experience various, complex, and intertwined forces favouring – or objecting to – accession. As will be seen below in section 4.3, some non-signatory States also actively draw on the Convention in their handling of refugees; this illustrates the existence of a tension in some States between a resistance to accede on the global plane, and the practical and perhaps even normative use of Convention principles at the local level.
3.3 Protection conditions in signatory versus non-signatory States
Accession to the 1951 Convention, UNHCR argues, ‘means better protection’.62 Although this is one of the main arguments in favour of accession, no systematic or comparative studies on protection in signatory versus non-signatory States are available to support such a claim. Nonetheless, the assumption that refugee protection is superior in signatory States compared to that in non-signatory States is widespread and entrenched, and the almost instinctive elevation of signatory States arguably nurtures the ‘myth of difference’, as famously described by Chimni.63 Closer analytical scrutiny of both signatory and non-signatory States’ existing engagement with key refugee protection norms may – or may not – arguably reveal that important similarities, rather than differences, characterize both sets of States.
Global developments in the decades following the conclusion of the 1951 Convention indicate the complexity of this question. With regard to Western Europe, for example, Aleinikoff noted on the occasion of the 40th anniversary of the Convention in 1991 that:
The 1951 Convention was written primarily by Europeans about Europeans; indeed, a frequent criticism of the document is that it is too ‘Euro-centric’. Yet Western Europe now appears among the least committed of the regions to the original humanitarian underpinnings of the Convention. This is evidenced by the restrictive interpretations of controlling legal norms adopted by government actors, the implementation of harsh deterrent measures (visa policies, carrier fines, detention), and reduced financial support for international refugee aid programmes.64
He is not alone in pointing to this paradox. In relation to Australia, Nah has highlighted how it has interpreted its Convention obligations in controversial ways, including by engaging in ‘third-country processing’ and mandatorily detaining non-citizens unlawfully present in its territory.65 In countries like Japan and the Republic of Korea, asylum seekers do not have full access to fair and timely refugee status determination procedures, and, as Nah has observed, these countries ‘tend to provide protection only as a matter of discretion and humanitarian action rather than as a matter of responsibility or obligation’.66
In this regard, it is interesting to note that in the author’s study of Lebanon, conducted at the height of the European political crisis on refugees in 2015–16, the Lebanese policymakers interviewed were only too willing to stress that signatory status does not by definition mean better refugee protection.67 Indirectly deriding European States’ handling of the 2015 refugee situation, the Lebanese representative to the CERD Committee even argued that ‘[t]he Lebanese Government … respected the principle of non-refoulement and it was not erecting walls or barbed-wire fences’.68
Similar protection-without-ratification arguments have been made in the context of other non-signatory States, with UNHCR commenting on the state of protection in Pakistan in the following way: ‘[i]n practice … Pakistan has generally respected international standards in its control over the stay and treatment of refugees’.69 In its submission to the 2012 Pakistan Universal Periodic Review, UNHCR similarly noted that it ‘agrees with the view’ that Pakistan, ‘despite not being a signatory of the 1951 Convention … had abided by all of its provisions’.70 While this is not to say that protection in both sets of States is analogous, it points to the possibility that protection in non-signatory States is not necessarily inferior to that in signatory States.
Of interest here is a comparison – albeit small in scale – carried out by Coddington in a study of refugee protection in the United Kingdom (UK) (a signatory State) and Thailand (a non-signatory State). The study found that in Thailand, as well as in the UK, ‘protection takes shape as ad hoc, arbitrary and differentially applied across space, leading to extreme precariousness’.71 Refugee governance in both cases was built on similar restrictive logics and strategies, revealing that in many signatory and non-signatory States alike, the limiting of refugees’ access to asylum has arguably become an increasingly common political aim.72
Of course, any such comparative study of refugee protection would need to take as a benchmark not only the protection norms set out in the 1951 Convention, but also other forms of protection that currently lie outside the realm of the Convention. In her work on pluralizing geographies of refuge, Cole has stressed the ‘importance of scholarly efforts to explore alternatives to asylum that do not rest on western conceptions of refugeehood’.73 Similarly, Jones’s ‘Law of Asylum’ project seeks to flesh out a local alternative to the international refugee regime in non-signatory States, and provide important insights on a more locally grounded refugee law, in line with what Juss has described in his vision of a TRL.74
4. UNHCR AND INTERNATIONAL REFUGEE LAW IN NON-SIGNATORY STATES
International refugee law is present in non-signatory States in a number of different ways. Perhaps most importantly, for decades UNHCR has had a field presence in many non-signatory States, engaging in both international protection and direct assistance to refugees and asylum seekers. UNHCR has been present in Lebanon and Pakistan, for example, since 1962 and 1979 respectively, while its relationship with Bangladesh dates back to the 1971 Bangladeshi war of liberation. As Goodwin-Gill has noted, UNHCR’s operations, interventions, and initiatives influence international refugee law, not least because ‘its activities can and do generate relevant practice and, in turn, lead to the emergence of opinio juris’.75 With this in mind, this part explores how UNHCR functions as an important norm entrepreneur in non-signatory States, and how international refugee law is present in a wide range of national settings.
4.1 Protection space
UNHCR’s competence with respect to refugees is described in its Statute as universal in nature, without any geographical limitation.76 As such, its mandate permits the Office to supervise – with the host State’s consent – refugees not only in signatory but also in non-signatory States.77 That said, in many of these States, UNHCR has a highly operational presence, often acting as a ‘surrogate State’ and taking on responsibilities that typically belong to States, such as refugee status determination.78
Central to UNHCR’s presence in non-signatory States is its promotion and negotiation of ‘protection space’ – or a ‘favourable protection environment’ – for refugees. This space is generally understood to be ‘an environment sympathetic to international protection principles and enabling their implementation to the benefit of all those entitled to protection’.79 As such, it includes strengthening institutional support for protection and community-based protection, rather than (merely) promoting ratification of the Convention.80 The pragmatic nature of the ‘protection space’ approach, as Stevens has noted, also allows UNHCR to orient policy in a direction of its own choosing, producing, in effect, a ‘multi-dimensional protection regime’.81
While this ‘protection space’ provides an opportunity for UNHCR to function as an important norm entrepreneur, critical voices have also pointed to the grave ramifications of this approach. As Jones has noted, for example, its indistinct and non-binding nature ‘privileges international interests, fora and UNHCR as the negotiator; devalues the normative strength of obligations towards refugees; and allows the underlying responsibilities for the provision of refugee protection to drift from the state to UNHCR’.82 It is thus important to interrogate more carefully the ways in which the norms of the 1951 Convention are interpreted, and perhaps even transformed, in this UNHCR–State negotiation.
Importantly, the practice also lays bare the preference of many non-signatory States to negotiate the protection of specific groups of refugees rather than to adopt a single systematic and impartial approach. As Nah has argued: ‘These negotiations have tended to be temporal, contingent and politicized, informed by foreign policy considerations and the political affiliations of government leaders’.83 Governments may dismiss UNHCR’s interventions amid claims that refugees and asylum fall within the scope of national security, and thus are expressions of State sovereignty.84 Indeed, as research on Lebanon has shown, UNHCR is often juxtaposed between the principles of international refugee law and the host State’s own approach to asylum and refugees, and, in the case of that country, UNHCR’s operations are exceptionally vulnerable to governmental interference.85
4.2 Memoranda of Understanding
One form of cooperation between UNHCR and non-signatory host States, often overlooked in the scholarship, is the bilateral Memorandum of Understanding (MoU) that in many cases constitutes the basis of collaboration in non-signatory States.86 These agreements lay the groundwork for UNHCR’s formal presence and, by setting out the terms of cooperation and reiterating core refugee protection principles, they arguably create an important link between non-signatory States and the 1951 Convention. One example is UNHCR’s 1998 MoU with Jordan, which adopts a refugee definition similar to the Convention definition and declares Jordan’s commitment to international standards of refugee protection, including the principle of non-refoulement.87
On other occasions, the substantive content of the agreements may bind the host State in observing norms and principles well beyond anything that could be derived from customary international law or even the 1951 Convention itself.88 In the context of Pakistan, Zieck has noted how one central agreement contains a refugee definition so broad that it may be comparable to the refugee definition contained in the UNHCR Statute or in the regional 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.89 This means, Zieck argues, that if Pakistan were to accede to the 1951 Convention, the narrower Convention definition of a refugee would entail that ‘most of the Afghan refugees who sought refuge in Pakistan would not have qualified as [Convention] refugees’.90
Sometimes, however, these agreements are far from benign and may even be a protection concern in themselves. UNHCR’s 2003 agreement with Lebanon’s Security Office, for example, has been criticized for being negotiated only with the country’s security agency, and, as such, for adopting a Lebanese perspective of refugees as security threats.91 While the agreement makes no mention of key refugee protection norms such as non-refoulement, it establishes a legally peculiar obligation on UNHCR to resettle recognized refugees within a set timeframe. The three examples above indicate that the varying content of these MoUs warrants closer, comparative attention by international refugee law scholars in order to understand more precisely how – and which – refugee protection norms are diffused in these contexts.
4.3 International refugee law in national fora
UNHCR’s promotion of international refugee law in non-signatory States also takes various forms – including through involvement in domestic legal reform and collaborations with universities – and the Office is often key in the creation of national spaces where State actors are socialized into the international refugee law regime. This, in turn, arguably plays an important role in influencing the ways in which national and local actors reason and converse within the international refugee law paradigm.
As noted in section 3.3, several non-signatory States have made the claim that, although they are non-signatories, they still abide by some/key/all the Convention’s provisions. In May 2018, Bangladesh explained that it ‘is not a signatory to the 1951 Refugee Convention, yet Bangladesh has long been hosting refugees and forcibly displaced Rohingyas from Myanmar with full respect to international protection regime’.92 Pakistan has made a similar claim,93 while Lebanon has argued that it need not accede to the 1951 Convention as it applies many of its provisions voluntarily.94 At the 2019 Global Refugee Forum, Indonesia also made the following statement:
Although Indonesia is not a state party to the 1951 Convention and its 1967 Protocol / yet Indonesia has adhered to / and applied the main principles of the Convention, namely: the non-refoulement; non-penalization; and non-discrimination // Indonesia has gone extra-miles – beyond our obligation and capacity – as a transit country to almost 14.000 refugees, coming from 42 countries.95
In a similar manner, international refugee law influences the decisions of some non-signatory States regarding who is to be considered a refugee.96 In the context of the Syrian refugee response, Lebanese political actors have avoided using the ‘refugee’ label, believing that doing so would trigger specific duties towards these refugees.97 Bangladesh has only occasionally officially recognized Rohingya arrivals as ‘refugees’, labelling the majority as ‘Undocumented Myanmar Nationals’.98 Such ideas, as Davies has convincingly argued, only make sense within a discursive framework derived from the refugee definition found in the 1951 Convention.99
UNHCR and local and regional civil society organizations also engage as norm entrepreneurs on refugee protection by mobilizing – and sometimes actively participating in – domestic legal reform. In many situations, as in the case of Pakistan, UNHCR believes that such legislatory change ‘could be a first step toward getting Pakistan to sign the 1951 UN Convention on refugees’.100 While UNHCR is often the most dominant influence in socializing local civil society actors with respect to refugee protection norms, it is the civil society organizations themselves that are perhaps most crucial in persuading their governments ‘from below’.101 As explained by Nah in her study of the Asia Pacific Refugee Rights Network:
Local civil society actors are uniquely located socio-politically vis-à-vis their own governments. As ‘insiders’ they are able to shape public opinion in the local vernacular, and to engage with the judiciary, legislature and executive with local legitimacy … They cannot be immediately dismissed as ‘outsiders’ who ‘interfere’ in the domestic affairs of a state. Their advocacy challenges the preconception that refugee protection is a ‘Western idea’, particularly salient in postcolonial, nationalistic societies.102
Domestic courts in non-signatory States also occasionally engage with international refugee law norms and principles. The Convention was directly referenced by the Bangladeshi Supreme Court in cases relating to the unlawful expulsion orders against Rohingya refugees, and, in 2017, the High Court Division of the Supreme Court of Bangladesh even made the notable – and highly debatable – claim that the Convention had ‘become a part of customary international law which is binding upon all the countries of the world, irrespective of whether a particular country has formally signed, acceded to or ratified the Convention or not’.103 In India, UNHCR Notes on International Protection have similarly been referenced by parties to national court procedures concerning pushbacks of Rohingya refugees and, in some situations of immigration detention, Indian courts have also sought intervention from UNHCR to determine a detainee’s asylum claim.104 In Hong Kong, a series of court cases led the Hong Kong government to launch its mechanism for determining claims for protection against non-refoulement with reference to article 33 of the Convention.105 Taken together, it is clear that the ways in which domestic courts and local legal actors in non-signatory States interpret and draw on the Convention merit further study.
UNHCR’s support for university education related to international refugee law is another example of how it engages as a norm entrepreneur, and of how actors in non-signatory States are socialized to the norms embedded within the Convention.106 In India, for example, UNHCR recently formed a research and advocacy initiative with academics working on refugee issues,107 and in Bangladesh it partners with the Refugee and Migratory Movements Research Unit, established in 1995. Similarly, in Saudi Arabia, UNHCR has formalized collaboration with the Naif Arab Academy for Security Sciences in order to disseminate international refugee law to law enforcement officials from all the Gulf Cooperation Council (GCC) States.108 Sometimes, such efforts span several decades; UNHCR’s promotion of international refugee law in Indonesian universities, for example, began in the 1980s.109 In the same vein, UNHCR regularly co-organizes courses on international refugee law at the International Institute of Humanitarian Law in San Remo, Italy, to which it sponsors judges, government officials, and civil society actors from these States.110
In sum, non-signatory States are continually being socialized – to various extents and in various forms – to the norms and principles embedded within the 1951 Convention, and these processes need to be studied more closely. As the next part discusses, however, these socialization processes, as well as taking place in national fora, also occur in a wide range of global fora, where non-signatory States participate in important decisions that have a direct bearing on the evolution and interpretation of international refugee law.
5. NON-SIGNATORY STATES AND THE DEVELOPMENT OF INTERNATIONAL REFUGEE LAW
Through their participation in key global fora on refugee protection, non-signatory States are not only themselves socialized, but they also participate as norm entrepreneurs in developing the meaning of key concepts of international refugee law. While a range of different global and regional fora exist, this part focuses on the role of non-signatory States in UNHCR’s Executive Committee, as well as in global high-level meetings on refugee protection.
5.1 UNHCR’s Executive Committee
UNHCR’s Executive Committee was established in 1958 and today is made up of 107 States, many of which have not acceded to the 1951 Convention. Lebanon joined in 1963, Pakistan in 1988, and Bangladesh and India both joined in 1995. Non-signatory States’ engagement at the annual Executive Committee consultations is tangible. In 2020, for example, Lebanon, Jordan, Bangladesh, Thailand, India, and Pakistan participated as members; Thailand sent a total of 27 delegates and Pakistan 13.111 Non-Member States, such as Andorra, Bhutan, Cuba, Indonesia, the Lao People’s Democratic Republic, Malaysia, Myanmar, Iraq, Kuwait, Nepal, Qatar, Saudi Arabia, Singapore, Sri Lanka, Syria, Vietnam, and the United Arab Emirates (UAE), participated as Observers.
The Executive Committee is tasked with advising the High Commissioner ‘on the exercise of his or her functions under the Statute’ of his Office112 and with approving the High Commissioner’s assistance programmes. As such, by participating as members in this forum, non-signatory States are jointly responsible for the repeated calls for States that are not yet parties to accede to the 1951 Convention. They also actively contribute to developing the substance of refugee law by drafting the annual conclusions that interpret the Convention.
While the Executive Committee conclusions, adopted in plenary by consensus, are not formally binding, they may nevertheless be highly relevant by expressing an international consensus – and as evidence of opinio juris – on legal issues concerning refugees.113 In a 2001 Opinion examining the status of the principle of non-refoulement, Lauterpacht and Bethlehem found that Executive Committee conclusions are particularly important, given that membership of the Committee was comprised of States that have a ‘demonstrated interest in and devotion to the solution of the refugee problem’.114 In particular, they opined that the conclusions can:
be taken as expressions of opinion which are broadly representative of the views of the international community. This is particularly the case as participation in meetings of the Executive Committee is not limited to, and typically exceeds, its membership. The specialist knowledge of the Committee and the fact that its decisions are taken by consensus add further weight to its Conclusions.115
Additionally, in 1995, the Executive Committee established a Standing Committee which examines thematic issues in periodic meetings, reviews UNHCR activities and programmes in the different regions, and adopts appropriate decisions and conclusions on issues included by the plenary. Taken together, the Executive Committee plenary sessions and the Standing Committee meetings constitute a formal space where non-signatory States are not only socialized into the legal norms and principles embedded within the 1951 Convention, but also have an opportunity to actively influence the development of international refugee law.
5.2 Global Compact negotiations and high-level meetings
In addition to the work in UNHCR’s Executive Committee, non-signatory States participate in other high-level meetings and fora. While this article focuses on those of a global character, it is worth noting that a number of regional initiatives pertaining to refugee protection also create important links to the 1951 Convention.116
UNHCR organized Ministerial Meetings on the occasions of the 50th and the 60th anniversaries of the 1951 Convention in 2001 and 2011 respectively.117 One of the main purposes of the 2001 meeting was to focus on strengthening implementation of the Convention by promoting universal accession to the Convention and its 1967 Protocol.118 Nineteen (at the time) non-signatory States participated as Observers during the Preparatory session ahead of the Ministerial Meeting,119 and 34 were present during the main Ministerial Meeting.120 Ten non-signatory States made statements during the meeting.121 At the 2011 meeting, 22 non-signatory States participated, with 11 making statements.122 A Ministerial Communiqué was adopted in which the Ministers and State representatives notably:
Reaffirm[ed] that the 1951 Convention relating to the Status of Refugees and its 1967 Protocol are the foundation of the international refugee protection regime and have enduring value and relevance in the twenty-first century. We recognize the importance of respecting and upholding the principles and values that underlie these instruments, including the core principle of non-refoulement, and where applicable, will consider acceding to these instruments and/or removing reservations.123
More recently, non-signatory States have participated: first, in the negotiations leading to the adoption by the General Assembly of the 2016 New York Declaration for Refugees and Migrants – which set out the principles that would guide the global response to refugee displacement; secondly, in the General Assembly negotiations leading to the adoption of the Global Compact on Refugees (GCR) in December 2018;124 and thirdly, in the first Global Refugee Forum in late 2019, where pledges were made to put the GCR into action. The latter was in fact co-convened by Pakistan together with UNHCR and several other ‘long-standing champions of the refugee cause’.125
Of these processes, perhaps most noteworthy is the GCR. In the General Assembly, 181 States – many of them non-signatory States – voted in favour of adoption. Only two States (the United States and Hungary) voted against and three (the Dominican Republic, Eritrea, and Libya) abstained.126 A closer examination shows that not only were key non-signatory States some of the most active parties in these negotiations,127 but that strong links existed between these global spaces. At the 2020 session of the Executive Committee, for example, several non-signatory States not only reiterated key refugee protection principles, but explicitly referred to the objectives of the GCR.128
Importantly, the GCR is ‘grounded in the international refugee protection regime, centred on the cardinal principle of non-refoulement, … at the core of which is the 1951 Convention and its 1967 Protocol’.129 While the GCR takes the 1951 Convention as its starting point, reaffirming many of its core principles, in many respects it goes beyond the legal commitments articulated in the Convention.130 One section of the GCR also explicitly acknowledges the contributions made by non-signatory States, with a call for them to consider accession to the Convention.
These examples arguably demonstrate that the division between ‘outsiders’ and ‘insiders’ is often blurred when it comes to the participation of non-signatory States in formal global fora. This blurring of roles happens in the study of other fields also, for example, in the case of States that have opted out of certain European Union (EU) legislation131 or that are not EU Members at all.132 In these cases, opting out or being formally excluded does not necessarily imply that they do not influence or adapt to new EU legislation. In fact, they may play the role of ‘full’ members. As such, there is much potential in exploring the ways in which non-signatory States may – or may not – play the role of full parties to the 1951 Convention when engaging on the international plane. In some cases, these States – engaging strongly with the international refugee law regime yet choosing not to accede to the Convention – might even be conceptualized as shadow parties to the Convention. By their participation on the international plane, non-signatory States arguably help create soft law obligations that build on the hard law (that is, the Convention) from which they have formally opted out. As such, this soft law creates an interstitial and contingent normative space connecting non-signatory States to a multilateral treaty to which they are not formally party.
6. CONCLUSION
By focusing on the relationship between non-signatory States and the 1951 Refugee Convention, this article has argued that the 1951 Convention continues to structure States’ responses to refugees, and plays a central role not only in States that are party to the Convention, but also in key non-signatory States. Importantly, the article does not seek to engage in a normative effort to position the Convention as the sine qua non of refugee protection, but rather to disrupt the emphasis on signatory States in contemporary discussions of the relevance and importance of the 1951 Convention. As such, it sketches out a new research agenda on non-signatory States and their relationship with the 1951 Convention.
In doing so, this article makes the claim that the 1951 Convention has a significant influence in non-signatory States, and that the same States engage with, and help shape developments within, international refugee law. It has detailed the many ways in which international refugee law norms are spread and used in non-signatory States, and how, by being present and active in global fora such as the UNHCR Executive Committee, and in negotiating soft law instruments such as the New York Declaration for Refugees and Migrants and the Global Compacts, these States participate in the evolution and interpretation of international refugee law. In certain cases where non-signatory States resist formal accession but nonetheless engage strongly with, and help develop, international refugee law both locally and globally, they may even be conceived as shadow parties to the Convention.
This article is to be seen as the beginning of a conversation about how non-signatory States can be brought into the conversation about the past and future of the 1951 Convention, rather than as an end in itself. Questions for further research in this stream are plentiful: What lessons can be drawn about the complex effects of international conventions through an examination of the role of non-signatories vis-à-vis the 1951 Convention? Why do States refuse to sign or ratify and what are the repercussions and implications of this? In what ways, and on what basis, does UNHCR operate in non-signatory States? How does UNHCR implement its mandate of international protection, and how do non-signatory States influence the understanding and implementation of this mandate? How do local courts and local civil society actors in non-signatory States engage with international refugee law norms and principles? How, more precisely, do non-signatory States help develop and interpret international refugee law in global and regional fora? The necessary task of unpacking the relationship between the Convention and non-signatory States continues.
This research was supported by the European Union’s Horizon 2020 research and innovation programme under grant agreement No 851121 (ERC Starting Grant 2019). I am grateful to Georgia Cole, Thomas Gammeltoft-Hansen, Nora Milch Johnsen, and the anonymous IJRL reviewers for comments on earlier drafts of this article.
Footnotes
Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (1951 Convention); Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (1967 Protocol).
David J Cantor, ‘The End of Refugee Law?’(2017) 9 Journal of Human Rights Practice 203; Seyla Benhabib, ‘The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights’ (2020) 2 Jus Cogens 75; Ben Smee, ‘Peter Dutton Says “Like-Minded” Countries Should Rethink UN Refugee Convention’ The Guardian (6 April 2018) <https://www.theguardian.com/world/2018/apr/07/peter-dutton-says-like-minded-countries-should-rethink-un-refugee-convention> accessed 28 November 2020.
Martin Jones, ‘Expanding the Frontiers of Refugee Law: Developing a Broader Law of Asylum in the Middle East and Europe’ (2017) 9 Journal of Human Rights Practice 212.
Maja Janmyr and Dallal Stevens, ‘Regional Refugee Regimes: Middle East’ in Cathryn Costello, Michelle Foster, and Jane McAdam (eds), Oxford Handbook of International Refugee Law (Oxford University Press 2021).
Jones (n 3) 215.
Satvinder Juss, ‘Transnational Refugee Law’ in Peer Zumbansen (ed), Oxford Handbook of Transnational Law (Oxford University Press 2021) 218.
Hélène Lambert, Jane McAdam, and Maryellen Fullerton (eds), The Global Reach of European Refugee Law (Cambridge University Press 2013); Guy S Goodwin-Gill and Hélène Lambert, The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union (Cambridge University Press 2010); Jill I Goldenziel, ‘When Law Migrates: Refugees in Comparative International Law’ in Anthea Roberts and others (eds), Comparative International Law (Oxford University Press 2018); Juss (n 6); Susan Kneebone ‘Comparative Regional Protection Frameworks for Refugees: Norms and Norm Entrepreneurs’ (2016) 20 International Journal of Human Rights 153; Alice M Nah, ‘Networks and Norm Entrepreneurship amongst Local Civil Society Actors: Advancing Refugee Protection in the Asia Pacific Region’ (2016) 20 International Journal of Human Rights 223; Petrice R Flowers, Refugees, Women, and Weapons: International Norm Adoption and Compliance in Japan (Stanford University Press 2009).
Lambert and Goodwin-Gill (n 7).
Ryan Goodman and Derek Jinks, ‘How to Influence States: Socialization and International Human Rights Law’ (2004) 54 Duke Law Journal 621; Jay Goodliffe and Darren G Hawkins, ‘Explaining Commitment: States and the Convention against Torture’ (2006) 68 Journal of Politics 358; David P Forsythe, The Internationalization of Human Rights (Free Press 1991); Oona A Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’ (2007) 51 Journal of Conflict Resolution 588; Margaret E Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Cornell University Press 1998); Thomas Risse, Stephen C Ropp, and Kathryn Sikkink (eds), The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge University Press 2013); Harold H Koh, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181.
Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887, 891.
Robert D Benford and David A Snow, ‘Framing Processes and Social Movements: An Overview and Assessment’ (2000) 26 Annual Review of Sociology 611; Rodger A Payne, ‘Persuasion, Frames and Norm Construction’ (2001) 7 European Journal of International Relations 37.
Risse, Ropp, and Sikkink (n 9); Hélène Lambert, ‘Introduction: European Refugee Law and Transnational Emulation’ in Lambert, McAdam, and Fullerton (eds) (n 7).
Koh (n 9).
ibid.
For an overview of the drafting process of the 1951 Convention, see Terje Einarsen ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford University Press 2011).
See eg Statement by Brohi (Pakistan), UN ECOSOCOR, 11th Sess., SR 399 (1950) paras 29–30. See also Einarsen (n 15) 57.
James C Hathaway, ‘A Reconsideration of the Underlying Premise of Refugee Law’ (1990) 31 Harvard International Law Journal 129. See also Lucy Mayblin, Asylum after Empire: Postcolonial Legacies in the Politics of Asylum Seeking (Rowman & Littlefield 2017); Ulrike Krause, ‘Colonial Roots of the 1951 Refugee Convention and Its Effects on the Global Refugee Regime’ (2021) 24 Journal of International Relations and Development 627.
T Alexander Aleinikoff, ‘The Refugee Convention at Forty: Reflections on the IJRL Colloquium’ (1991) 3 International Journal of Refugee Law 617, 622.
BS Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11 Journal of Refugee Studies 350, 351. See also Glen Peterson, ‘Sovereignty, International Law, and the Uneven Development of the International Refugee Regime’ (2015) 49 Modern Asian Studies 439.
Tendayi Achiume, ‘Race, Refugees and International Law’ in Costello, Foster, and McAdam (eds) (n 4) 56.
For examples of scholarly work taking this or a similar approach, see Pia Oberoi, ‘South Asia and the Creation of the International Refugee Regime’ (2001) 19 Refuge 36; Peterson (n 19); Jay Ramasubramanyam, ‘Regional Refugee Regimes: South Asia’ in Costello, Foster, and McAdam (eds) (n 4).
One example of a case warranting closer scrutiny is Mauritius, where the Supreme Court of Mauritius concluded that, upon its independence from Great Britain in 1968, Mauritius had succeeded to the 1951 Refugee Convention. Yet Mauritius is not among the formal list of States parties to the Convention and UNHCR regularly encourages it to accede to the Convention. For a discussion, see Nora Milch Johnsen and Maja Janmyr, ‘State Succession to the 1951 Refugee Convention: The Curious Case of Mauritius’ (Refugee History Blog, 30 September 2021) <https://refugeehistory.org/blog/2021/9/30/state-succession-to-the-1951-refugee-convention-the-curious-case-of-mauritius> accessed 7 October 2021.
Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (4th edn, Oxford University Press 2021) 572; Tendayi Achiume, ‘Beyond Prejudice: Structural Xenophobic Discrimination against Refugees’ (2013) 45 Georgetown Journal of International Law 323.
Stefanie Schmahl, ‘Article 1 B 1951 Convention’ in Zimmermann (ed) (n 15) 470.
ibid 475.
See Statute of the Office of the United Nations High Commissioner for Refugees, UNGA res 428 (V) (14 December 1950) (UNHCR Statute) ch II.
Hathaway (n 17). See also Sara E Davies, ‘Redundant or Essential? How Politics Shaped the Outcome of the 1967 Protocol’ (2007) 19 International Journal of Refugee Law 703.
Achiume (n 20) 45.
BS Chimni, ‘The Past, Present and Future of International Law: A Critical Third World Approach’ (2007) 8 Melbourne Journal of International Law 499; ‘The Birth of a “Discipline”: From Refugee to Forced Migration Studies’ (2009) 22 Journal of Refugee Studies 11.
Cantor (n 2) 207.
ibid. See also Cecilia Bailliet, ‘National Case Law as a Generator of International Refugee Law: Rectifying an Imbalance within UNHCR Guidelines on International Protection’ (2015) 29 Emory International Law Review 2059.
Georgia Cole, ‘Pluralising Geographies of Refuge’ (2021) 45 Progress in Human Geography 88, citing discussions in Andreas Wimmer and Nina Glick Schiller, ‘Methodological Nationalism, the Social Sciences, and the Study of Migration: An Essay in Historical Epistemology’ (2003) 37 International Migration Review 576.
Dawn Chatty, ‘The Duty to Be Generous (Karam): Alternatives to Rights-Based Asylum in the Middle East’ (2017) 5 Journal of the British Academy 177, 193.
Sara E Davies, Legitimising Rejection: International Refugee Law in Southeast Asia (Martinus Nijhoff Publishers 2008).
See, ultimately, the collection in Costello, Foster, and McAdam (eds) (n 4).
Jones (n 3); Cole (n 32).
Juss (n 6) 2.
Art 8(a) of the UNHCR Statute (n 26) specifies a duty for the High Commissioner to ‘provide for the protection of refugees falling under the competence of his Office by … promoting the conclusion and ratification of international conventions for the protection of refugees’.
UNHCR, ‘UNHCR to Push for Wider Ratification of Refugee and Statelessness Conventions’ (8 October 1998) <http://www.unhcr.org/news/press/1998/10/3ae6b81138/unhcr-push-wider-ratification-refugee-statelessness-conventions.html> accessed 28 November 2020.
UNHCR, ‘The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: Signing on Could Make All the Difference’ (2001) <https://www.unhcr.org/protection/globalconsult/3bbdb0954/signing-difference.html> accessed 28 November 2020.
UNHCR, ‘Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Guyana’ (June 2014).
UNHCR, ‘Submission by the United Nations High Commissioner for Refugees (UNHCR) for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Bangladesh’ (October 2012).
Claims have been made that Nauru acceded to the Convention only under diplomatic pressure from Australia. Jones (n 3).
UNHCR, ‘South Sudan Signs the 1951 Refugee Convention’ (UNHCR, 1 October 2018) <https://www.unhcr.org/news/press/2018/10/5bb1c5fb4/south-sudan-signs-1951-refugee-convention.html> accessed 28 November 2020.
A useful point of reference in this regard may be Flowers’ work (n 7) on Japan’s accession to the Convention in 1981.
Maja Janmyr, ‘No Country of Asylum: “Legitimizing” Lebanon’s Rejection of the 1951 Refugee Convention’ (2017) 29 International Journal of Refugee Law 438. See also UN Committee on the Rights of the Child (CRC), ‘Summary Record of the 1142nd (Chamber A) Meeting (Geneva, 24 May 2006)’, UN doc CRC/C/SR.1142 (26 August 2006) para 70.
UNHCR, ‘Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Mongolia’ (September 2014).
Enny Soeprapto, ‘Promotion of Refugee Law in Indonesia’ (2004) 2 Indonesian Journal of International Law 57.
For examples relating to Bangladesh, see CEDAW Committee, ‘Concluding Observations of the Committee on the Elimination of Discrimination against Women: Bangladesh’, UN doc CEDAW/C/BGD/CO/7 (22 March 2011) paras 37, 38; CRC, ‘Concluding Observations of the Committee on the Rights of the Child: Bangladesh’, UN doc CRC/C/BGD/CO/4 (26 June 2009) paras 78, 79.
Janmyr (n 46) 445.
This is recorded, for example, in its Annual Reports of 2000–01, 2002–03, 2003–04, and 2008–09. For example, NHRC Annual Report 2008–09 notes that: ‘While reviewing international human rights instruments, the Commission stressed the need to ratify the 1951 UN Convention relating to the Status of Refugees’. NHRC Annual Reports are available on the NHRC website: <https://nhrc.nic.in/publications/annual-reports?tid=2894> accessed 28 November 2020.
Michael Kagan, ‘“We Live in a Country of UNHCR”: The UN Surrogate State and Refugee Policy in the Middle East’ (2011) UNHCR, New Issues in Refugee Research, Research Paper No 201. See also Janmyr (n 46); Ruben Zaiotti, ‘Dealing with Non-Palestinian Refugees in the Middle East: Policies and Practices in an Uncertain Environment’ (2006) 18 International Journal of Refugee Law 333.
UNHCR, ‘Country Operations Plan 2006: Lebanon’ (1 September 2005) <http://www.refworld.org/docid/43327bde2.html> accessed 22 September 2019.
Janmyr and Stevens (n 4).
Asian-African Legal Consultative Organization (AALCO), Bangkok Principles on the Status and Treatment of Refugees (31 December 1966).
Ikbal Al Fallouji, ‘Arab Countries and Refugee Law: A Study’ (1983), cited in Janmyr and Stevens (n 4) 441.
Janmyr (n 46).
Sara E Davies, ‘The Asian Rejection? International Refugee Law in Asia’ (2006) 52 Australian Journal of Politics and History 562. See also Davies (n 34); Sam Blay, ‘Regional Developments: Asia’ in Zimmermann (ed) (n 15); Jay Ramasubramanyam, ‘Subcontinental Defiance to the Global Refugee Regime: Global Leadership or Regional Exceptionalism?’ (2018) 24 Asian Yearbook of International Law 60; Ada Pui Yim Lai and Kerry J Kennedy, ‘Refugees and Civic Stratification: The “Asian Rejection” Hypothesis and Its Implications for Protection Claimants in Hong Kong’ (2017) 26 Asian and Pacific Migration Journal 2.
Sumit Sen, ‘The Refugee Convention and Practice in South Asia: A Marriage of Inconvenience?’ in Joanne Van Selm and others (eds), The Refugee Convention at Fifty: A View from Forced Migration Studies (Lexington Books 2003) 213.
Oberoi (n 21). See also, by the same author, Exile and Belonging: Refugees and State Policy in South Asia (Oxford University Press 2006).
Oberoi (n 21) 42.
UNHCR, ‘The 1951 Convention’ (n 40).
Chimni (n 19) 351.
Aleinikoff (n 18) 623.
Nah (n 7) 229.
ibid. See also Andrew Wolman, ‘Japan and International Refugee Protection Norms: Explaining Non-Compliance’ (2015) 24 Asian and Pacific Migration Journal 409.
Janmyr (n 46). Lebanon’s handling of refugees has also been criticized in Maja Janmyr, ‘Precarity in Exile: The Legal Status of Syrian Refugees in Lebanon’ (2016) 35 Refugee Survey Quarterly 58.
UN doc CERD/C/SR.2463 (15 August 2016) para 5 (emphasis added).
UNHCR, ‘UNHCR Global Appeal – Pakistan’ (2004) <http://www.unhcr.org/3fc7547e0.pdf> accessed 28 November 2020.
The submission nonetheless continues: ‘However, non-ratification of the Convention and the absence of a national legal refugee protection framework serve as a practical barrier to ensure refugee protection in Pakistan’. UNHCR, ‘Submission by the United Nations High Commissioner for Refugees (UNHCR) for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: Pakistan’ (April 2012) 5.
Kate Coddington, ‘Landscapes of Refugee Protection’ (2018) 43 Transactions of the Institute of British Geographers 326, 327.
ibid.
Cole (n 32) 88.
Website of the Law of Asylum project <https://www.lawofasylum.net/> accessed 28 November 2020; Juss (n 6).
Guy S Goodwin-Gill, ‘The Office of the United Nations High Commissioner for Refugees and the Sources of International Refugee Law’ (2020) 69 International & Comparative Law Quarterly 1, 40.
UNHCR Statute (n 26) art 6. See also Schmahl (n 24) 473.
Walter Kälin, ‘Supervising the 1951 Convention Relating to the Status of Refugees: Article 35 and Beyond’ in Erika Feller, Volker Türk, and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press 2003).
Kagan (n 52); Amy Slaughter and Jeff Crisp, ‘A Surrogate State? The Role of UNHCR in Protracted Refugee Situations’ (2009) UNHCR, New Issues in Refugee Research, Research Paper No 168.
Erika Feller, ‘Protecting People in Conflict and Crisis: Responding to the Challenges of a Changing World’ (Opening Address, Humanitarian Space Conference, Refugee Studies Centre, Oxford, September 2009) 5.
Dallal Stevens, ‘Access to Justice for Syrian Refugees in Lebanon’ in Maria O’Sullivan and Dallal Stevens (eds), States, the Law and Access to Refugee Protection: Fortresses and Fairness (Hart Publishing 2017).
Dallal Stevens, ‘Rights, Needs or Assistance? The Role of the UNHCR in Refugee Protection in the Middle East’ (2016) 20 International Journal of Human Rights 264, 265; Gerhard Hoffstaedter, ‘Urban Refugees and UNHCR in Kuala Lumpur’ in Koichi Koizumi and Gerhard Hoffstaedter (eds), Urban Refugees: Challenges in Protection, Services and Policy (Routledge 2015). See also Anne Barnes ‘Realizing Protection Space for Iraqi Refugees: UNHCR in Syria, Jordan and Lebanon’ (2009) UNHCR, New Issues in Refugee Research, Research Paper No 167.
Martin Jones, ‘Moving beyond Protection Space: Developing a Law of Asylum in South-East Asia’ in Susan Kneebone, Dallal Stevens, and Loretta Baldassar (eds), Refugee Protection and the Role of Law: Conflicting Identities (Routledge 2014) 257.
Nah (n 7) 229.
BS Chimni, ‘Status of Refugees in India: Strategic Ambiguity’ in Ranabir Samaddar (ed), Refugees and the State: Practices of Asylum and Care in India, 1947–2000 (SAGE Publications India 2003).
Maja Janmyr, ‘UNHCR and the Syrian Refugee Response: Negotiating Status and Registration in Lebanon’ (2018) 22 International Journal of Human Rights 393.
For a general overview of these MoUs, as well as observations as to how they have often also been ignored, forgotten, or even lost, see Marjoleine Zieck, UNHCR’s Worldwide Presence in the Field: A Legal Analysis of UNHCR’s Cooperation Agreements (Wolf Legal Publishers 2006).
Ghida Frangieh, ‘Relations between UNHCR and Arab Governments: Memoranda of Understanding in Lebanon and Jordan’ (LSE Middle East Centre Blog, 2016) <https://blogs.lse.ac.uk/mec/2016/09/23/relations-between-unhcr-and-arab-governments-memoranda-of-understanding-in-lebanon-and-jordan/> accessed 28 November 2020.
Marjoleine Zieck, ‘The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises’ (2008) 20 International Journal of Refugee Law 253.
Marjoleine Zieck, ‘Accession of Pakistan to the 1951 Convention and 1967 Protocol Relating to the Status of Refugees: “Signing On Could Make All the Difference”’ (2010) 5 Pakistan Law Review 1.
ibid 5.
UNHCR, ‘The Memorandum of Understanding between the Directorate of the General Security (Republic of Lebanon) and the Regional Office of the UN High Commissioner for Refugees, Concerning the Processing of Cases of Asylum-Seekers Applying for Refugee Status with the UNHCR Office’ (Geneva, 9 September 2003). For a discussion, see Janmyr (n 85).
UN Human Rights Council, ‘National Report submitted in accordance with paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Bangladesh’, UN doc A/HRC/WG.6/30/BGD/1 (26 February 2018) para 125 (emphasis added).
UN Human Rights Council, ‘Report of the Working Group on the Universal Periodic Review: Pakistan’, UN doc A/HRC/8/42 (4 June 2008).
UNHCR and Government of Lebanon, ‘Lebanon Crisis Response Plan 2015–2016’ (2014) <https://reliefweb.int/report/lebanon/lebanon-crisis-response-plan-2015-2016> accessed 28 November 2020.
Statement by Indonesia, Global Refugee Forum (17–18 December 2019) <https://www.unhcr.org/events/conferences/5df9f35b4/statement-from-indonesia.html> accessed 28 November 2020. See also statements by Malaysia: <https://www.unhcr.org/events/conferences/5dfa3d294/statement-from-malaysia.html> accessed 28 November 2020; and Sri Lanka: <https://www.unhcr.org/events/conferences/5dfa7a747/statement-from-sri-lanka.html> accessed 28 November 2020.
Janmyr (n 46); Davies (n 34); Zieck (n 89).
Janmyr (n 46) 460.
UNHCR, ‘UNHCR Submission on Bangladesh: 30th UPR Session’ (May 2018) <http://www.refworld.org/docid/5b081ec94.html> accessed 28 November 2020.
Davies (n 34).
UNHCR, ‘Boosting Refugee Protection in Pakistan’ (20 December 2004) <http://www.unhcr.org/news/latest/2004/12/41c6d2524/boosting-refugee-protection-pakistan.html> accessed 28 November 2020.
Nah (n 7). See also Vivien Collingwood and Louis Logister, ‘State of the Art: Addressing the INGO “Legitimacy Deficit”’ (2005) 3 Political Studies Review 175; Alan Hudson, ‘NGOs’ Transnational Advocacy Networks: From “Legitimacy” to “Political Responsibility”?’ (2001) 1 Global Networks 331; Michael Edwards, Legitimacy and Values in NGOs and Voluntary Organizations: Some Sceptical Thoughts (Earthscan 1999).
Nah (n 7) 227. See also Naiyana Thanawattho, Waritsara Rungthong, and Emily Arnold-Fernández, ‘Advancing Refugee Rights in Non-Signatory States: The Role of Civil Society in Thailand’ (2021) 67 Forced Migration Review.
Refugee and Migratory Movements Research Unit (RMMRU) v Government of Bangladesh, Writ Petition No 10504 of 2016, Bangladesh: Supreme Court (31 May 2017) 9–10 <https://www.refworld.org/cases,BAN_SC,5d7f623e4.html> accessed 28 November 2020. See also Ashraful Azad, ‘Foreigners Act and the Freedom of Movement of the Rohingyas in Bangladesh’ (2018) 5 Griffith Journal of Law & Human Dignity 183; M Sanjeeb Hossain, ‘Bangladesh’s Judicial Encounter with the 1951 Refugee Convention’ (2021) 67 Forced Migration Review.
The UNHCR Note on International Protection of 13 September 2001 is annexed in the Affidavit by the Union of India: <https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/26/Rohingya_2018_Jan_IA_on_Pushback.pdf> accessed 28 November 2020. See Ktaer Abbas Habib Al Qutaifi v Union of India (UoI) (12 October 1998). Discussed in Roshni Shanker and Hamsa Vijayaraghavan, ‘Refugee Recognition Challenges in India’ (2020) 65 Forced Migration Review.
Rachel Li, Isaac Shaffer, and Lynette Nam, ‘Hong Kong’s Unified Screening Mechanism: Form over Substance’ (2021) 67 Forced Migration Review.
UNHCR, Boosting Refugee Protection in Pakistan (n 100).
Jessica Field and others, ‘Introduction’ in Jessica Field and Srinivas Burra (eds), The Global Compact on Refugees: Indian Perspectives and Experiences (Academicians Working Group and UNHCR India 2020) 2.
UNHCR, ‘Country Operation Plan: Saudi Arabia’ (2005) <https://www.unhcr.org/protection/cops/4159637923/unhcr-country-operations-plan-2005-saudi-arabia.html> accessed 28 November 2020; Saudi Press Agency, ‘Naif University to Organize Forum on “Asylum and Its Security, Political and Social Dimensions”’(SPA, 24 August 2015) <https://www.spa.gov.sa/viewstory.php?newsid=1390766> accessed 28 November 2020.
Soeprapto (n 48).
For an example of local training in GCC States, see UNHCR, ‘UNHCR Saudi Arabia and GCC Countries, Fact Sheet: June 2010’.
UNHCR, UN doc A/AC.96/LXXI/INF.1 (8 October 2020).
UNHCR Statute (n 26).
Goodwin-Gill (n 75).
As provided in UNHCR Statute (n 26) para 4.
Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: Opinion’ in Feller, Türk, and Nicholson (eds) (n 77) 148, para 214. See also Kevin Jon Heller, ‘Specially-Affected States and the Formation of Custom’ (2018) 112 American Journal of International Law 191; Corinne Lewis, ‘UNHCR’s Contribution to the Development of International Refugee Law: Its Foundations and Evolution’ (2005) 17 International Journal of Refugee Law 67.
One example is the International Ministerial Conference of the Organization of Islamic Cooperation on Refugees in the Muslim World, at which the Member States of the OIC adopted the Ashgabat Declaration of 2012. Art 5 of the Declaration notes that the 1951 Convention and its Protocol ‘have enduring value and relevance in the twenty-first century’ and ‘the importance of respecting the principles and values’ underlying the instruments.
UNHCR, ‘Ministerial Meeting of States Parties to the 1951 Convention and/or Its 1967 Protocol relating to the Status of Refugees 12–13 December 2001’, UN doc HCR/MMSP/2001/09 (16 January 2002); UNHCR, ‘Ministerial Meeting’ (2011) <https://www.unhcr.org/ministerial-meeting.html> accessed 28 November 2020.
UNHCR, ‘Report of Ministerial Meeting of States Parties to the 1951 Convention and/or Its 1967 Protocol relating to the Status of Refugees 12–13 December 2001’, UN doc HCR/MMSP/2001/10 (18 January 2002) para 2.
These States were Afghanistan, Bahrain, Bhutan, Cuba, Indonesia, Iraq, Jordan, Malaysia, Mauritius, Myanmar, Nepal, Oman, Republic of Moldova, Saudi Arabia, Sri Lanka, Syrian Arab Republic, Thailand, Ukraine, and Vietnam. UNHCR, ‘Report of the Preparatory Session to the Ministerial Meeting of States Parties to the 1951 Convention and/or Its 1967 Protocol relating to the Status of Refugees (20–21 September 2001)’, UN doc HCR/MMSP/2001/03 (23 October 2001) para 6.
These States were Bahrain, Bangladesh, Bhutan, Brunei Darussalam, Cook Islands, Cuba, Eritrea, India, Indonesia, Iraq, Jordan, Kuwait, Lao People’s Democratic Republic, Lebanon, Libyan Arab Jamahiriya, Malaysia, Mongolia, Myanmar, Nepal, Oman, Pakistan, Qatar, Republic of Moldova, St Kitts and Nevis, San Marino, Saudi Arabia, Singapore, Sri Lanka, Syrian Arab Republic, Thailand, Ukraine, UAE, Uzbekistan, and Vietnam. UNHCR, ‘Report of Ministerial Meeting of States Parties to the 1951 Convention and/or Its 1967 Protocol relating to the Status of Refugees 12–13 December 2001’, UN doc HCR/MMSP/2001/10 (18 January 2002) para 7.
UNHCR, Ministerial Meeting (2011) (n 117) para 21.
Participants included Bahrain, Bangladesh, Bhutan, Cuba, India, Indonesia, Iraq, Jordan, Lebanon, Libya, Myanmar, Nepal, Oman, Pakistan, Qatar, Saudi Arabia, South Sudan, Sri Lanka, Syrian Arab Republic, Thailand, UAE, and Vietnam. Statements were made by Iraq, Jordan, Lebanon, Qatar, India, Indonesia, Myanmar, Nepal, Pakistan, Syria, and Thailand.
UNHCR, ‘Intergovernmental Event at the Ministerial Level of Member States of the United Nations on the occasion of the 60th Anniversary of the 1951 Convention relating to the Status of Refugees and the 50th Anniversary of the 1961 Convention on the Reduction of Statelessness (7–8 December 2011)’, UN doc HCR/MINCOMMS/2011/6 (8 December 2011) para 2.
Report of the United Nations High Commissioner for Refugees. Part 2, Global Compact on Refugees, UN doc A/73/12 (Part II) (2018) (GCR).
UNHCR, ‘Summary of Participation and Pledges at the Global Refugee Forum’ (January 2020) <https://www.unhcr.org/5e20790e4> accessed 28 November 2020. The Forum was attended by the following non-signatory States: Bahrain, Bangladesh, Bhutan, Brunei, Cuba, India, Indonesia, Iraq, Jordan, Kuwait, Lao People’s Democratic Republic, Lebanon, Libya, Malaysia, Myanmar, Nepal, Oman, Pakistan, Qatar, Saudi Arabia, Sri Lanka, Thailand, UAE, Uzbekistan, and Vietnam.
UNGA, UN doc A/73/PV.55 (17 December 2018) 10.
See eg ‘Statement by India made during the first round of formal consultations on the Global Compact on Refugees, delivered by Dr Sadre Alam, First Secretary’ (13 February 2018) <https://www.pmindiaun.gov.in/pages/MTYwMA,> accessed 28 November 2020. India, Iraq, Lebanon, Myanmar, and Syria also submitted written contributions, while Lebanon, Pakistan, and Jordan also participated actively in the thematic discussions in connection with the GCR negotiations.
See eg statements by Pakistan, Jordan, and India at the 71st annual session of the UNHCR Executive Committee (5–9 October 2020): Pakistan <https://www.unhcr.org/5f7c72c54> accessed 28 November 2020; Jordan <https://www.unhcr.org/5f7ec1364> accessed 28 November 2020; India <https://www.unhcr.org/5f7ec17a4> accessed 28 November 2020. Non-signatory States have also expressed support for the GCR at previous sessions of the Committee. See eg UN doc A/AC.96/SR.703 (3 November 2017) para 37; UN doc A/AC.96/SR.712 (23 October 2018) para 34; UN doc A/AC.96/SR.713 (29 November 2018) para 26; UN doc A/AC.96/SR.715 (23 November 2018) paras 6, 17.
GCR (n 124) para 5.
For a useful critique of the GCR, see BS Chimni, ‘Global Compact on Refugees: One Step Forward, Two Steps Back’ (2018) 30 International Journal of Refugee Law 630.
Rebecca Adler-Nissen, ‘Behind the Scenes of Differentiated Integration: Circumventing National Opt-Outs in Justice and Home Affairs’ (2009) 16 Journal of European Public Policy 62.
Maja Janmyr, ‘Norway’s Readmission Agreements: Spellbound by European Union Policies or Free Spirits on the International Field?’ (2014) 16 European Journal of Migration and Law 181.
