Protection of refugee is a worldwide problem that international community have attempted to address since the early twentieth century. The Statute of the UNHCR adopted by the General Assembly in December 1950 established the Office of the United Nations High Commissioner for Refugees (UNHCR) that is the principal international agency concerned with the assistance and protection of refugees. Its primary responsibilities relate to ‘providing international protection and seeking permanent solution for the problem of refugees’. Among its key function is the supervision of the 1951 United Nations Convention on the Status of Refugees of which Article 35 requires State Parties to cooperate with it.

Refugee in international law is governed by a complex network of national, regional and international law. The 1951 United Nations Convention on the Status of Refugees and the 1967 Protocol relating to the Status of Refugees are the principal legal instruments established for the protection of refugees which have been ratified by 147 states. In fact, 1967 Protocol extends temporal and geographical application of the 1951 Refugee Convention. It is argued that 1951 Convention and 1967 Protocol failed to recognize the person whose migration is prompted by natural disaster, war or broadly-based political and economic turmoil. By mandating protection for those whose (western inspired) civil and political rights are jeopardized, without at the same time protecting persons whose (socialist inspired) socio-economic rights are at risk, the Convention adopted an incomplete and politically partisan human rights rationale.

The 1951 Convention elevates ‘the status of refugee protection as a matter of international concern’. It contains most widely accepted definition of the term ‘refugee’ and ‘principle of non-refoulement’.[i] There is increasing threats to the principle of non-refoulement recent years. The evolution of non-entrée policies in the industrialized world and interdiction in the high seas become a regular state practices.

The two main characteristic of the Convention definition are its strategic conceptualisation and its Eurocentric focus. The Convention is thus on the one hand restricted the scope of protection and on the other hand sought to create a right regime conducive to the redistribution of the post-war refugee burden from European shoulders. In this sense, the Convention was intended 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. It was not until more than fifteen years later that the Protocol relating to the Status of Refugees expanded the scope of the Convention definition to include refugees from all regions of the world.

Next to the almost entirely missing obligations and implementation criteria, one should note that the 1951 Convention and 1967 Protocol is not comprehensively enough to secure the protection of refugees, leaving some critical elements outside its otherwise generously defined scope of application. Some of these missing elements are related to the centrality of state sovereignty, which is intrinsic to the refugee protection. In this context it may be noted that states have consistently refused to undertake an obligation to accept a right of asylum enforceable at the instance of an individual. [ii]

Ever since the 1951 Refugee Convention and its 1967 Protocol, states have realized the necessity of new rules, partly in order to fill gaps left by the present international refugee regime, but also to tune the international protection regime system better to cope with the rapid changes in refugee situations. At the end of 2009, the total number of ‘persons of concern’ under the mandate of the Office of the UNHCR had increased to 34,464,20. Several attempts to modify the international protection regime of refugee have been made over the years. These include the definition contained in the 1951 Convention on the Status of Refugee, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problem in Africa (OAU Convention), the 1984 Cartagena Declaration on Refugees. These international instruments on refugee acknowledges three alternatives as plausible permanent solutions to refugee problem – (a) repatriation to the country of origin; (b) local integration; and (c) resettlement in a third country. The discussion on durable solutions is extremely over-politcized and often resembles a clash between state generated refugees and receiving state that find no channel of communication between them. A vital element omitted from the regulatory domain of the 1951 Convention and 1967 Protocol is the provisions relating durable solutions. This omission is particularly awkward since durable solutions have as their core objective of refugee problem. The 1969 OAU Convention (Article V) remains the only international instrument to make an explicit reference to voluntary repatriation. However, the solutions to refugees don’t come easily. States involved in durable solutions apply pressure in varying form and degree on the refugees and thereby deteriorating conditions in areas where they have settled. In brief, international refugee law’s impact on the search for solutions to the refugee problem is at times imprecise and inadequate.

Additionally, in 1966, Asian-African Legal Consultative Committee (AALCC) adopted the principle concerning treatment of refugees and later a Group of Arab experts meeting in Cairo in November 2002 adopted a non-binding Declaration on the Protection of Refugees and Displaced Persons in the Arab world. These principles, also non-binding in character, have however exercised little influence in the region.

The increasing regionalisation of refugee problems and the growing membership of the United Nations have made it difficult to achieve the consensus required for the introduction of any new universal treaty on refugees. This has resulted increased gap between the responsibility entrusted to UNHCR and the obligations undertaken by the states. Numerous proposals are advanced to bridge the gap and to make refugee protection principles. One could group these suggestions (without claims for an exhaustive listing) into three categories:

(1) The first cluster of proposals suggests the insertion of supervision based on state reporting, advisory opinions or individual complaints to the international refugee regime similar to the ones existing monitoring mechanism in international human rights regime. This would arguably require the states to provide UNHCR with information concerning the condition of refugees, their implementation of the Convention and national laws relating to refugees, and thereby the states will get engaged in a ‘kind of dialogue of justification’. It is argued that, states already have a reporting obligation under Article 35(2) of the Convention. However, at present the application of this provision has not been regularized. Another option within this category, sketched by Professor Walter Kalin, is the creation of permanent Sub-Committee, possibly within the framework of the Executive Committee, responsible for Review and Monitoring. It is also conceivable that the Sub-Committee would be responsible for carrying out reviews of specific situations of refugee flows or of particular countries, which would be identified on the basis of transparent and objective criteria. Kalin has suggested, that these Refugee Protection Reviews would combine independent fact-finding and expertise with elements of peer-review (discussion of reports by other States Parties).

Other, subtler proposal put forward by Kalin is in essence to introduce a thematic Rapporteur that would be handled by the Executive Committee.

(2) Other proposition in this context, is introduction of a judicial body to encourage consistent interpretations of the provisions in the Convention and the standards in the Conclusions. Justice Tony North argued fervently for many years the introduction of an ‘International Judicial Commission on Refugees’. [iii] Under this proposal, the Commission would be created under the supervisory mandate of UNHCR contained in Para 8 of the UNHCR Statute, but would be independent of UNHCR. It would be nine-member independent body of experts, providing advisory legal opinions pertaining to questions of interpretation of the Convention. The members of the Commission would select these questions, although UNHCR would have a special power to seek opinions from the Commission. As Kalin notes, ‘it might be difficult to garner support for this proposal amongst States’.

(3) To fill some of the current gaps in the international protection regime, one possible means of influencing states can be to formulate and develop standards on International Protection through Conclusions adopted by the Executive Committee of UNHCR. Corinne Lewis suggested that ‘the although the Conclusions are not binding on states, Executive Committee is the only specialized forum for the development of international refugee law standards at a global level’. [iv] It is argued that the Conclusions therefore have the potential to have significant normative influence as an expression of the consensus of the international community on a specific protection matter. However, as Holborn quite rightly notes, despite this, they have generally been afforded relatively low status internationally. [v] In addition, Oscar Schachter, for example, believe that because international organizations are created to develop international norms, when states become members of those organizations, they accept an obligation to cooperate with each other to do so. Following the recommendations of such organizations therefore become a means by which states can fulfill this obligation. [vi]

However, all these proposals, besides the obvious difficulty of formulating them in a non-arbitrary and enforceable manner and of obtaining the states consent are not easy. Moreover, all of these suggestions are essentially ‘academic’ projects and not really politically driven ones that enjoy the support of the States Parties of the Convention. In fact, as the UNHCR/States Parties of the Convention clearly shows, the search for protection of refugee solutions within the UNHCR has largely given up. States are happy to maintain their low level of commitments and the escape to the forum of UNHCR offers security in this regard. Despite the impressive number of states that have ratified the Convention, and thus arguably committed to the objective of protecting the refugee, it is highly unlikely that a negotiating bloc would form within the UNHCR to push for some of the above ‘refugee’ solution. This is because when one looks at the political economy behind the adoption of the additional responsibility under the Convention, there is not only one voice. Different states have ratified it for different reasons following their own specific agendas.

Bayani introduced the subject of state responsibility for displaced populations. This issue has remained unsettled because of starkly different positions of the major states drivers, the European states, which also reflect pro-culture stances during the 1951 Convention debate. One proposition in this context is to introduce relevant international law norms and the evaluation of the past practices with reference to obligations owed by the state of origin to the receiving country. Another suggestion has been to create obligations owed by the state of origin to the international community. Tomuschat suggested the UNHCR has a right to recover the costs incurred in assisting refugees from the country of origin. Chimni raised question would the UNHCR has the legal standing to claim the costs of assisting refugees? [vii]

As a consequence of this deepening discord, ‘sovereignty as responsibility’ discourse is becoming increasingly attractive for politicians as the popularity of human rights champions wanes, in particular in developed countries and as national values and interests, especially after 9/11, gain prominence. Yet the politically driven disconnect between sovereignty and responsibility, while easily justified before the constituencies concerned, is not necessarily beneficial for either the domain of refugee or that of protection/solution. Oscar Schacter argues that ‘it is highly undesirable to have a new rule allowing humanitarian intervention, for that could provide a pretext for abusive intervention’. [viii] The idea of ‘sovereignty as responsibility’ was first put forward by the Sudanese scholar and Special Representative of the UN Secretary General for Internally Displaced Persons, Francis M. Dang, particularly in a publication by the Brooking Institute Sovereignty as Responsibility: Conflict Management in Africa (1996). Here Deng believed the sovereign state as the primary guarantor of human rights and human security. This document came after two major defeats for the new interventionism, after following the ignominious withdrawal of UN forces from Somalia in 1993, and the failure to halt atrocities in Rawanda in 1994. However, Deng linked his new idea of sovereignty to the failure of the US Operation Restore Hope in Somalia. Meanwhile, Kofi Annan challenged international society to avoid ‘future Rawandas’. The challenges were responded by western scholars and political leaders, most notably by the International Commission on Intervention and State Sovereignty (ICISS), an independent panel partly funded by the Canadian government. In its report, the ICISS expounded the new doctrine ‘the Responsibility to Protect’. Here Third world states reaffirmed their long understanding on issues of self-determination, development and non-intervention. The author submits that one should avoid to extend norms beyond the point at which they cannot provide meaningful guidance