Refugees and Internally Displaced Persons: Similar Problems but with Different Solutions

INTRODUCTION (Chapter A)

The law of human rights protects the most vulnerable in our societies. To be in a foreign country, without money, friends or family and to not even understand the language is to be vulnerable. To be forced to leave home and to abandon all that is familiar and safe is to be vulnerable. To be a refugee is therefore to be vulnerable.


Refugees, through no fault of their own must flee war, civil unrest and persecution. The concept of refugee movements is as old as man itself with history detailing countless mass movements[1] throughout the ages. Despite this, it is only recently that the international community has taken action to address the needs of refugees. Unfortunately, the modern world is one that is coming to grips with the notion of terrorism with the world divided as to which is more dangerous; the terrorism or the war on that terror[2]. Naturally, such a division will also give rise to an increase of paranoia and distrust of ones fellow man, especially one’s foreign fellow man. In this climate the Convention Relating to the Status of Refugees[3] (hereafter referred to as the Refugee Convention) and the Protocol Relating to the Status of Refugees[4] (hereafter referred to as the 1967 Protocol) must attempt to safeguard the rights of the world’s refugees.


In addition to the above paranoia and distrust that is evident in today’s society, there is also the presence of a stigma that has attached itself to refugees. This stigma sees asylum seekers, refugees and economic migrants as one and the same thing and considers them all bad. It fails to see the difference between the benefit that economic migrants can bring to an economy and the dire struggle faced by refugees and asylum seekers who are in desperate need of assistance. Also, the stigma tends to label all of the above as criminals. What must be remembered is that both unemployment and economic inequality have obvious links with criminality[5] and thus any individual who finds themselves in a foreign country without the ability to work or communicate could easily turn to crime if not properly assisted. Unfortunately, much of society views people associated with criminality as less worthy than the general public[6] and thus if the negative stigma continues to be unfairly attached to refugees, there might not be a willingness to provide them with the help they require.


In addition to the plight of refugees is the one faced by Internally Displaced Persons (hereafter referred to as IDPs). Such people can at times encounter the same uncertainty, hardship and difficulties that refugees face but do so within the borders of their own countries of origin. This creates a difficulty as the international community has no automatic right to provide assistance or demand help be given to such individuals. It is primarily the responsibility of the country which they reside in. However as will be seen, the paths and causes of both refugees and IDPs often cross.


An outline of the following article, which intends to compare and contrast the treatment of refugees and IDPs on an international level, will now be provided. Chapter (B) will attempt to define what refugees and IDPs actually are in order to try and understand why they are treated differently. In this regard, finding a definition for each of the above will naturally highlight the differences between them as a definition by its very nature distinguishes between one thing and another[7]. Such an analysis is also important as without knowing what or who someone is, how can that person gain or be given rights.


Chapter (C) will undertake an examination of the recent historical development of the concept of refugeehood, i.e. the status associated with being a refugee. In this regard it must be remembered that the old world order that was in existence prior to the early 20th century and all the institutions and political structures that were in place, came asunder with the occurrence of World War I[8]. The purpose of this chapter is to highlight the massive amount of historical development that has taken place with regard to defining and dealing with refugees, in contrast to the lack of attention that IDPs have received.


Chapter (D) examines the Refugee Convention and the 1967 Protocol. The importance of these instruments cannot be over-estimated especially considering that they are effectively the only international, legally binding documents in force with regard to refugees. Also, since the success of human rights is measured and judged by its appearance in international law[9], the fact that refugee law does exist within the international framework is of great importance. In addition, the fact that IDPs do not have similar legally binding instruments means an examination of the Refugee Convention and the 1967 Protocol must involve consideration of whether IDPs should have their own instruments or indeed be included in the above two.


This will naturally be followed in chapter (E) with an analysis of whether there are any equivalent standards in international law with respect to IDPs and a consideration of their value.


In chapter (F) the Office of the United Nations High Commissioner for Refugees (hereafter referred to as the UNHCR) will be examined. This body is of considerable importance as its mandate is specifically directed towards dealing with the plight of refugees but recent developments have seen it take charge of matters associated with IDPs. Therefore the actions taken by this body with its dualistic responsibilities are highly relevant to a discussion of how refugees and IDPs face different levels of protection and treatment on the international stage.


The region of the European Union will be considered in chapter (G). The fact that much of the recent history relating to refugees finds its origin in European countries means that an analysis of the present day situation there is required. This is especially true when it appears that the European Union does not believe it has any local occurrences of refugees or IDPs.


Chapter (H) will detail the possible ways forward for the international protection of both refugees and IDPs and chapter (I) will provide some general conclusions.


Throughout this essay there is much highlighted tension that exists between refugees, IDPs and the state. Though there is a constant balancing of needs between the formers and the latter it must be pointed out that human rights are not solely about the individual battling the state[10]. Much of the advancement of refugee and asylum law has been down to brave political forces within the governments of the world. The only complaint that must be pointed out at the outset is that such advancement is far from enough.

DEFINITIONS AND DIFFERENCES (Chapter B)

It will be made quite clear in the following chapters that refugees and IDPs are often considered different and more importantly treated differently on the world stage. For now, a brief look as to what these concepts mean and whether or not such meanings retain any validity in the modern world is of present necessity. For most people who are not obsessed with legal definitions, a refugee is simply anyone who is forced to flee his or her home[11]. Naturally on such a simple assessment, one could contend that IDPs make up a specific category of refugees but unfortunately this is not true in practice. Much of the distinction that exists between the two groups is retained due to history, sovereignty and the presence of internationally recognised treaties. However, there are countless authors who argue that such retention is neither of benefit to refugees or IDPs nor of real value to the international legal system.


Defining what refugees and IDPs actually are is of key importance to understanding the similarities and differences that exist between them. Unfortunately the idea of an IDP is quite a recent construction[12] and its definition has been more of an informal nature[13] than one might expect a definition to be. Concepts that are not historically old and thus relatively new are troublesome to the extent that they are not tried and tested and have not been granted enough time to be refined. That is not to say that they are without value, but merely to point out that definitions generally have to be continuously developed if they are to prove of worth. On the other hand, the idea of refugees has been historically developed (a point that will be seen in chapter C) and finds its definition within a well established and internationally accepted treaty in the guise of the Refugee Convention[14] (which will be examined in chapter D). Of importance here, is that although the Refugee Convention does not require states parties to directly employ its definition of refugee into their domestic legal systems[15], that definition has still managed to permeate into the legislation of many signatory countries[16]. This means that at the domestic level, which in truth is the most important level as it is the closest to the people for whom the law is intended for, the concept of refugees is more firmly established and available than that of IDPs. Now, that is not to say that there is no document or somewhat formal definition of IDPs, for that would be misleading. However, it can be stated without fear of rebuttal that there is greater clarity and understanding as to what a refugee rather than an IDP is.


Leaving aside the precise definition of the above groups of people, a matter that will be considered in greater detail in later chapters, one can safely assert that an easy way to differentiate between the two is to examine whether or not the crossing of a border has occurred. It is true in a way to say that IDPs are merely refugees who have not crossed any border, even though this would result in a very narrow interpretation of IDPs[17]. The fact of the matter is that in order to be considered a refugee, the crossing of a border is a necessity to highlight to the international community that there is the required lack of national protection being offered from the potential refugee’s country of origin[18]. However a few points must be made with regard to this bond between citizen and state that must be severed for an individual to be considered a refugee[19].


Firstly, is it not conceivable to believe that IDPs, who flee their home due to the ravages of a war or civil conflict that grips a nation, are also left unprotected by that nation even though they have not crossed a border? It is hard to argue that IDPs do not face the same difficulties, dangers and general traumatic experiences as suffered by the world’s refugees. Secondly, the mere crossing of a line on a map seems an awfully cruel way of deciding which category of people receives international protection and which does not. This is especially true when one considers the fact that many of the borders that exist today were drawn up by colonial powers without due deference being paid to cultural, social and religious divides or commonalities[20] in an area. Still though, the fact remains that those who cross these borders are allowed to claim recognisable and tangible rights or benefits, whereas those who do not cross such borders cannot. Hart once commented that the law will at times provide benefit to one class of a population only at the cost of depriving another class of what they seek to enjoy[21]. This proposition can be seen to be analogous with the fact that the border element of our present discussion may be creating a situation which offers an unfair advantage to refugees[22] over and perhaps at the expense of IDPs. However, this is not an attempt to criticise the treatment of the world’s refugees or cast doubt upon the fact that they are internationally recognised and protected. Instead, these facts have been highlighted to show that at present IDPs (by their very nature) cannot rely on the Refugee Convention for protection, which is only activated by the border crossing element, despite the fact that they suffer a similar plight and have no convention of their own. Nor at present is this a call for there to be an international convention solely concerned with IDPs.


To truly understand and contest the reasoning behind the granting or denial of protection to specific categories of persons based on the movement around lines on a map, a discussion of sovereignty and its relevance to the present subject is required. A sovereign ‘renders habitual obedience to no one’[23] and sovereignty can be a ‘wholly emotive term’[24]. Such language, though flowery and grand depicts an unfortunate reality; sovereignty is entangled with national pride and world standing. Since the concept of the nation state arose, countries have guarded their sovereignty bitterly against all infractions and interferences. It is of no surprise that the subject matter of this article is coloured by its dealings with sovereignty also. The crossing of borders helps to differentiate between IDPs and refugees and it follows that state sovereignty can block assistance being provided to the former, whereas the latter are international subjects who can rely on the Refugee Convention[25]. That said, historically speaking states parties to the Refugee Convention still thought it necessary to make attempts to safeguard their sovereignty[26], so it is of no surprise that they would apply the same effort when it involved individuals within their own borders.


Why would a country deny international assistance being supplied to its citizens at times when it either is not in a position to provide such help or is simply failing to do so? The answer is to guarantee the status of its sovereignty. External humanitarian assistance may be viewed as outside political forces attempting to act subversively[27] within the territory of the troubled nation. This wolf in sheep’s clothing argument is not so far-fetched or cynical and is an accusation that nations such as the United States of America must defend themselves against in the modern world with regard to its war on terror. The problem with such paranoia is that political and national pride is prolonging the suffering of many who are in dire need of assistance and would otherwise be receiving such aid if they had the means to cross a border. It is at this time, that a call for a separate convention relating to IDPs could be validly made. If there was such an internationally recognised document, then states parties would have a set of guidelines (legally binding ones) to rely on when allowing foreign influences to assist them with IDPs. Also, those countries who are not refugee-producing would surely not object to such an occurrence as most are more than happy to favour the protection of IDPs rather than refugees[28]. For those countries, providing assistance to IDPs is less costly and burdensome than accommodating refugees.


In this regard it is worth noting that international agreement on the plight of IDPs (in the same way that there is international concurrence on refugees) is a better alternative to seeking ways around sovereignty. The idea that a country could forfeit its sovereignty in some way is not a positive step forward for the protection of IDPs. A country that fails to protect IDPs does not suddenly cease to exist to the extent that its consent is not needed to enter its borders[29] and such a concept is not ameliorated by the acceptance that such a state does not forfeit that sovereignty just by failing to carry out its international obligations[30]. Relying on forfeiture or attempting to circumvent sovereignty will simply make countries value and guard it to a greater extent.


Another notion that blurs the lines of definition, yet highlights the differences between IDPs and refugees, is that of the Internal Flight Alternative. Firstly it must be noted that is not a legal principle as such[31] and is not a pre-requisite to achieving the status of refugee. It involves the re-location of potential refugees to a region within their country of origin that can be considered safe instead of allowing such individuals to cross the border. So in essence it appears to be a way of denying the status of refugeehood and promoting the creation of IDPs. However, although that may be a cynical viewpoint to adopt, there is good reason to suggest caution with regard to the Internal Flight Alternative’s potential to produce IDPs[32] for as stated before, many states would welcome a programme that focuses on assisting IDPs within their country of origin rather than facing the international problem of refugees. In that regard it is of no surprise that the Office of the United Nations High Commissioner for Refugees does not consider the Internal Flight Alternative as a principle of refugee law and fears general incompatibility with certain key elements of the right to seek and enjoy asylum[33]. Interestingly, this criticism would seem to suggest that it is a negative development to use, in essence the way of life of IDPs, as an alternative to embracing refugees internationally. That surely must highlight once again the precarious position that IDPs find themselves in, in contrast to refugees.


Finally, the approach adopted by the International Committee of the Red Cross (hereafter referred to as the ICRC) is worth considering when analysing the conceptual similarities and differences between IDPs and refugees. It has been suggested that the ICRC sees no distinction when treating refugees or IDPs and thus equal protection of both on the international stage should be achievable[34]. Firstly it must be highlighted that the ICRC prides itself on its independence and neutrality so refugee-producing countries may be more willing to allow such an organisation to operate within its borders. That does not guarantee the same level of trust being given to bodies with a more political element to them or ones that are associated with the United Nations. Also, the ICRC does not just believe that no distinction should be made between the two groups relevant to our present discussion but instead is concerned with categories such as IDPs being distinguished from the general resident population[35]. Ironically, it was suggested earlier that refugees may be treated more favourably at the expense of IDPs, yet IDPs might very well be treated with the exact same preference with regard to the ordinary population of a country. It may be the case that different standards could be created rather than the bulk of the population who are suffering similar hardships simply being treated as victims of human right violations[36], a concern that obviously is known to the ICRC.


On an aside point it is worth noting that the ICRC also believes that the primary responsibility for IDPs lies ‘unequivocally’[37] with the countries where the IDPs reside despite its viewpoint that defining categories of peoples is not constructive. With that is mind, as refugees are accepted as a concern for the international community, it would seem that the previously mentioned concept of border crossing still is a key factor in the lives of both refugees and IDPs.


An analysis of the legal definition that applies to refugees and the attempts to define IDPs will be undertaken in later chapters. However with regard to the latter, it should be pointed out that there is always a danger when applying a definition that a narrow interpretation will subsequently be availed of as has already happened with regard to refugees in the past[38]. For now, it is sufficient to derive from the above analysis that IDPs and refugees do indeed suffer many of the same unfortunate hardships and do share many similar characteristics. However, it is also clear that the international community and the law itself views and treats them differently and there is authoritative opinion to both decry and applaud such distinction which undoubtedly favours refugees. In this regard though, it should be noted that the law is the means by which the ideals and aspirations of human rights, which arguably encompass the rights of IDPs, are made real[39] and thus for the suffering of IDPs to be ameliorated there may well be the need for them to be legally defined in some fashion.

HISTORY AND THE ANOMALY OF REFUGEES (Chapter C)


The Refugee Convention definition of refugee has been labelled a product and part of history[40]. This, though true, is hardly a surprising fact as most definitions, treaties and conventions are determined and defined by the time that gave birth to them. For instance the drafting of both the International Covenant on Economic, Social and Cultural Rights[41] (hereafter referred to as the ICESCR) and the International Covenant on Civil and Political Rights[42] (hereafter referred to as the ICCPR) was heavily influenced by the unfortunate reality of Cold War tensions and sensitivities of the day. With that in mind, it is important to briefly examine the recent historical treatment of refugees during the twentieth century in order to truly understand the importance and modern relevance of the Refugee Convention. There is a more obvious development and treatment of the concept of refugees throughout recent history as opposed to the relatively new and undefined notion of IDPs. However, as seen in the last chapter, there are many similarities and overlapping qualities shared by both refugees and IDPs and thus an understanding of the more developed notion of refugeehood is presently required. In this way, the basis of the highlighted distinctions between refugees and IDPs will become more apparent. The selection of the below instruments is based both on their relevance to the development of the concept of refugeehood and the unique value each one brought to the international refugee framework.


(1) Arrangement with Regard to the Issue of Certificates of identity to Russian Refugees:


In the 20th century, the first point of interest with regard to legalising and defining the notion of refugees is the Arrangement of 5th July 1922 with Regard to the Issue of Certificates of Identity to Russian Refugees[43] (hereafter referred to as the 1922 Arrangement). Prior to this the situation for many Russian citizens had become bleak. The Russian revolution of 1917 resulted in many innocent people choosing to flee the destruction and famine caused[44]. In addition to such conditions, many political opponents of the revolution were denaturalised (a political weapon still employed in parts of the world today) which added to the total number of would-be refugees fleeing. In total, the October revolution produced around 800,000 refugees[45], out of an estimated one million people who left Russia. This is despite the fact that the revolution itself was over in less than two days and without a major loss of life[46]. However, although the length of the actual revolution was mere days the suffering of the refugees it created continued for years.


In 1921, Fridtjof Nansen was appointed the League of Nations’ High Commissioner for Russian Refugees[47] and would become one of the most important figures in the development of global refugee protection. It is worth noting, that even the title of the above office shows how the notion of refugees was viewed as region-specific, i.e. that the problem was geographically unique rather than a world wide phenomenon. Nansen saw that the lack of identity papers possessed by the Russian refugees created a real obstacle to resettlement and integration[48] and this became the most urgent issue which he sought to address. The 1922 Arrangement (a product of Nansen’s work) attempted to deal with this situation by providing for the issuance of such certificates of identity which also facilitated mobility for the refugees. These certificates became known as Nansen Passports[49].


It should be pointed out that the system of certificates was rarely applied and even though the 1922 Arrangement was the first real arrangement dealing with refugee matters, it was of a non-binding nature. It was very formalistic and without any hint of substantive rights or benefits being created in favour of refugees. It is also clearly more of a state based document rather than a refugee based one and was not meant to inhibit or alter how nations dealt with foreigners within their borders as can be seen in the opening condition found within the 1922 Arrangement which states that the certificates issued ‘shall not infringe the laws and regulations in force in any State with regard to the control of foreigners’[50]. However, this is hardly surprising as this was in an era when the view of refugees was still based on public international law and thus was a state centred viewpoint.


(2) Arrangement Relating to the Issue of Identity Certificates to Russian and Armenian Refugees:


After the 1922 Arrangement, Nansen continued his work and the attention of the High Commissioner’s office was now drawn to the plight of the Armenian people. This focus culminated (a previous plan had been drafted to ameliorate the difficulties faced by the Armenians and distributed to various governments previously but not discussed at any inter-governmental conference) with the Arrangement of 12th May 1926 relating to the Issue of Identity Certificates to Russian and Armenian Refugees[51] (hereafter referred to as the 1926 Arrangement). As with the 1922 Arrangement, there was no general definition of what a refugee was but rather specific definitions relating to people of Russian or Armenian origin. However, of interest is the fact that the key elements of both definitions were that that the prospective refugees did not enjoy the protection of their respective governments and that they had not gained a new nationality and thus a new form of protection[52]. This is the first instance where the aforementioned bond between a nation and individual shows itself to be of seminal importance in refugee matters.


With regard to the 1926 Arrangement it is also worth noting that considerable attention is given to the creation of a fund[53] to be of assistance with respect to the costs associated with the movement of refugees. Even at this early stage, there was awareness that such a system would be costly. As will be seen later, the present United Nations High Commissioner for Refugees and the office associated with that role, which is in charge of matters relating to refugees, is still limited and at times restricted by the funds available.


Over the next few years it became obvious that there were other categories of refugees that were not being protected by the aforementioned arrangements despite finding themselves in similar, unfortunate circumstances as those that were already brought within the ambit of the League of Nations’ protection[54]. With that in mind the League of Nations felt compelled to extend its protection to those categories that were suffering analogous conditions to the Russian and Armenian people. However, it should be noted that not all of the categories suggested by High Commissioner Nansen at the time were accepted[55]. Some though, including for example a number of Assyrian and Assyro-Chaldean nationals came under the extended protection of the Arrangement Concerning the Extension to Other Categories of Refugee of Certain Measures taken in Favour of Russian and Armenian Refugees[56] (hereafter referred to as the Extension Arrangement). In this regard, the concept of analogous conditions should be highlighted. The League of Nations at the time was protecting those it recognised as refugees. However, upon seeing other peoples suffering under the same conditions, it opted to extend its ambit (even if only in a limited fashion). Should the same not be done with regard to IDPs, i.e. should the international framework that currently protects refugees be extended or adapted to protect IDPs? Though the answer lies outside the scope of this chapter, the point is worth bearing in mind.


Finally, during this period there were also steps taken to consider all relevant aspects of the legal status of those presently recognised as refugees[57] and this resulted in the final arrangement relevant to our discussion, the Arrangement Relating to the Legal Status of Russian and Armenian Refugees[58]. However, though this arrangement can be considered the predecessor to the refugee conventions of the 1930s[59], and as these conventions will be analysed next and are of greater importance, it does not possess stand alone value.


(3) Convention Relating to the International Status of Refugees:


The first binding document of relevance to the discussion of the historical development of the concept of refugeehood is therefore the Convention Relating to the International Status of Refugees[60] (hereafter referred to as the 1933 Convention). One of the most pivotal protagonists in the cause of refugees, Dr. Fridtjof Nansen, had died in the years prior to the 1933 Convention[61]. It would appear that his death was mirrored in the dire circumstances that many refugees still faced at the time but this in turn focused attention on the need for a set of binding obligations rather than mere recommendations regarding the status of refugees[62]. This set of facts gave birth to the 1933 Convention which managed to improve the position of refugees (those that it recognised as such at least). For example, the 1933 Convention attempted to guarantee access to justice[63] and advance the cause of refugee education[64] to name but two developments. In addition, although many of the obligations placed upon states by the 1933 Convention were couched in negative terms (unlike the rights granted), the fact that there was now a set of binding obligations was a positive step and enough to satisfy the human rights adage that there are ‘no rights unless accompanied by remedies’[65]. However, it must be pointed out that the states which later acceded to the 1933 Convention did so with reservations[66]. There is no doubt that reservations are a useful tool when negotiating treaties and encouraging state inclusion, but there is also the postulation that their value is only relevant to the early stage of treaty discussions and enforcement[67]. However, since this was the first binding set of dictates in the arena of refugee law it is understandable that states would be hesitant to sign up without safeguarding their interests.


Interestingly, the definitions of refugees found in previous, aforementioned arrangements were incorporated into the 1933 Convention. This is despite the fact that numerous objections were made about this point[68]. So it was still a category-based convention. However, despite this it did highlight that the lack of protection or an effective non-nationality were the key aspects of refugeehood[69]. So again the bond between nation and individual is of importance. Finally it should also be pointed out that an early mention of non-refoulement can be seen in Article 3 of the 1933 Convention where it stated that:

Each of the Contracting Parties undertakes not to remove or keep from its territory by application of police measures, such as expulsions or non-admittance at the frontier (refoulement), refugees who have been authorised to reside there regularly, unless the said measures are dictated by reasons of national security or public order.

This is almost two decades before non-refoulement would become a defining characteristic of the international law of refugees.


(4) Convention Concerning the Status of Refugees Coming from Germany:


The next convention of note (provisional arrangements and other documents of this era being of secondary importance as the convention incorporated most relevant definitions etc.) was the Convention Concerning the Status of Refugees Coming from Germany[70] (hereafter referred to as the 1938 Convention). This came about during an era when a social approach to the definition of a refugee was being taken[71]. In other words, a more humanitarian design was being employed. There is no need to present in too much detail the history immediately preceding World War II or the atrocities committed by the German nation under the rule of Hitler. Suffice it to say, Hitler had centralised power in a single authority which was under his control and had begun his Nazification of Germany in the years leading up to the 1938 Convention[72]. The well known persecution of this era understandably gave rise to countless numbers of refugees. However, as they were not covered by the 1933 Convention or any of the above arrangements[73], there was a need to fill the gap in international protection.


The key points of relevance to be made are that while attempting to accommodate the unique predicament faced by refugees coming from Germany at the time, the 1938 Convention in its first Article 1 allowed de facto grounds of refugeehood to be considered and denied refugee status to what are nowadays sometimes referred to as economic migrants. Firstly, the importance of expanding a refugee definition beyond de jure grounds is highly important given the reality of many situations, especially considering that prior to this convention refugees always had to prove in law that they did not enjoy the protection of their country of origin which can naturally prove more troublesome. Secondly, the notion that those persons who fled for ‘reasons of purely personal convenience’[74] were to be excluded from the definition of refugee is a concept that has modern ramifications, given the constant struggle of socioeconomic right advocates to establish the importance those rights in a world still dominated by civil and political ones.


Finally, it is worth noting that Germany left the League of Nations in 1935. Often, there is concern that accepting refugees from a country is a tacit condemnation of that country and thus states are careful to avoid such diplomatic blunders with regard to friendly nations. The withdrawal of Germany no doubt made it easier for the 1938 Convention to be drafted and agreed upon.


(5) Constitution of the International Refugee Organisation:


The final document of interest was formulated almost a decade after the aforementioned conventions. It was the immediate predecessor to the dominance of the Refugee Convention[75] and the rule of the United Nations Office of the High Commissioner for Refugees and was called the Constitution of the International Refugee Organisation[76] (hereafter referred to as the IRO Constitution). After World War II there was recognition that there had to be a change of international attitudes and that state interests could no longer be the only interests considered. The League of Nations had ceased to exist in 1946 and was being replaced by the United Nations which would soon adopt the beginnings of a human rights oriented world view. The International Refugee Organisation, based in Geneva, was not intended to be a permanent body and did not enjoy a long life span but its constitution can be seen to heavily influence the Refugee Convention of subsequent years.


Interestingly, membership of the International Refugee Organisation was dependant upon United Nations membership and if a country was expelled from the latter, then it would automatically cease to be a member of the former[77]. This seems an attempt to safeguard the organisation from condemning (in the diplomatic sense of labelling a country as refugee producing) a friendly nation in the sense that if that country’s actions were serious enough to be removed from the United Nations, then chances are those actions would also encourage flight from its borders. Of seminal importance to the present discussion is the list of valid objections highlighted by the IRO Constitution as being justifiable reasons to not return to a specific country. The objection of persecution based on the grounds of race, religion, nationality or political opinions[78] was considered a valid reason to secure non-refoulement. The similarities between the above grounds and the Refugee Convention definition of refugee are obvious[79]. It is clear that at this stage, the view of refugees had moved considerably away from the use of categories to a more individualistic approach and thus can be considered the beginning of the modern day approach to refugee matters.


Without doubt it is obvious that the first half of the 20th century played host to dramatic historical events that shaped the political and legal landscape of Europe. The understanding of what constitutes a refugee underwent a long and arduous process of definition, adjustment and expansion. There was obvious reluctance on the part of states to embrace expansive and far reaching definitions as to what refugees were and the subject itself from the outset was a politically charged one. However, it is clear that by the middle of the 20th century the world, especially Europe, was beginning to see things differently and recognising the need for a change. This would prove to be of benefit to refugees to the extent that the process of definition and expansion of protection was set to continue and transform into a more refugee friendly system. However, that is not to say that all problems were rectified or to suggest that states universally adopted a more humanitarian approach to the plight of refugees.


THE REFUGEE CONVENTION AND ITS 1967 PROTOCOL (Chapter D)


Over one hundred and forty of the world’s countries are party to either the Refugee Convention and its 1967 Protocol or both. These international documents are the basis for the international law concerning Refugees. It should be immediately noted that IDPs are not covered by the aforementioned documents nor is there any real consensus that it would be obviously beneficial to include them. There are many dissenting voices in the world that postulate that the Refugee Convention is obsolete in modern society. However, in 1967 the Refugee Convention was given new life via the 1967 Protocol, and the opportunity to discard the label of being outdated[80]. Whether it has managed to achieve the relevance that some argue it possesses is still a hotly debated topic. However, the fact remains that both the Refugee Convention and its 1967 Protocol are the current foundations of international refugee law and thus both deserve analysis.


With that in mind the examination must naturally begin with the Refugee Convention of 1951. It has been suggested that the Refugee Convention has three major parts; the convention definition of refugee, the principle of non-refoulement and the rights and obligations that concern a refugee within a state[81]. In this regard, the most important parts relevant to our discussion are the convention definition and the principle of non-refoulement, as without them any rights a refugee may have are inconsequential because they would not be allowed claim such rights or even be in the country to do so. However that does not mean such rights are not worthy of consideration as the rights listed within the Refugee Convention, as owed to them by states, are written in ‘mandatory language’[82]. Such wording is not intended to merely denote goals that should be aspired to but rather it dictates legal obligations that are internationally recognised. Unfortunately though, such wording does not extend to outlining obligations that states may owe to one another[83]. Considering the international and border crossing elements of refugeehood, this is a regrettable omission.


(1) The Refugee Convention and 1967 Protocol Definition:


The Refugee Convention of 1951 defines a refugee as any person who:

As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it[84].

In addition to this definition, the Refugee Convention also includes all persons covered by the aforementioned arrangements of 1926 and 1928, conventions of 1933 and 1938 and the IRO Constitution (in fact the Refugee Convention definition is said to follow on from what the International Refugee Organisation had begun in adopting an individualistic approach [85]). The above definition (when modified by the 1967 Protocol) has been considered a compromise between a respect for human rights and the state control of immigration[86], i.e. between refugeehood and sovereignty. In other words, this definition is a compromise between the interests of the individual and the desires of the state. Naturally though at first glance, the original formulated definition found within the Refugee Convention had the immediate drawback of being restricted by the temporal element of the expression ‘events occurring before January 1 1951’. In addition and to make maters worse, states could opt to restrict that element further by a geographical confinement which only allowed events that occurred in Europe[87] to be relevant.


What must be pointed out is that the Refugee Convention, even at the drafting stages, had an extremely Eurocentric feel so the above limitations are hardly surprising. It was drafted in the era of the Cold war and there were obvious tensions between the West and the Soviet Union over the suspicion that the Refugee Convention was a tool to assist dissidents fleeing to the West[88]. In addition, the Refugee Convention was and still is heavily directed toward protecting those who suffered civil and political oppression rather than those whose socioeconomic rights were in jeopardy[89], which favoured western European states.


That said, Article 1 of the 1967 Protocol, which many of the Refugee Convention signatories are now party to, removed (or at least made the removal possible) the temporal and geographical limitations that were present in the definition found in the 1951 Refugee Convention. Thus the terms ‘As a result of events occurring before 1 January 1951’[90] and ‘as a result of such events’[91] are not ingredients of the Refugee Convention definition of refugee. In this regard, protection has been extended by the 1967 Protocol to refugees from all regions of the world[92], and thus one aspect of Euro-centrism has been eliminated. Although, it should be pointed out that the geographical restriction can be maintained by those states who had limited the Refugee Convention’s application to Europe in the past. It should also be mentioned however that there are only 4 states currently employing such a limitation.


That does not make the convention definition of refugee complete though. For instance, within years of the 1967 Protocol came the Convention Governing the Specific Aspects of Refugee Problems in Africa[93] (hereafter referred to as the OAU Convention). This regional instrument added to the Refugee Convention/1967 Protocol definition and was acknowledged as doing so by the UNHCR[94]. Along with the aforementioned definition, the OAU Convention extends the term refugee to include:

… every person who, by owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality[95].

In comparison to the Refugee Convention/1967 Protocol definition, the OAU Convention recognises that the anomaly of refugees is caused by more than persecution based on civil or political grounds. The above definition appears to also encompass natural disasters as well as man-made ones. In addition, civil problems of a localised nature (which history dictates often spreads further throughout a country) are acknowledged as viable reasons for fleeing a country. The OAU Convention also appears to add a plurality to the purely individualistic nature of the Refugee Convention/1967 Protocol definition by brining in the notion of public order.


There is no need to attempt an exhaustive investigation into modern conventions and declarations that add to what the 1967 Protocol build on. The OAU Convention is sufficient to highlight the space that there still remains to either leave empty or fill with further definition. Also it must be pointed out that even though not perfect, the definition created by the Refugee Convention/1967 Protocol has world wide affect rather than a mere regional one. However, that still allows for criticism that the 1967 Protocol failed to review the content of the definition that it sought to re-affirm[96]. In reality, the 1967 Protocol simply cemented the place of the Refugee Convention’s definition of refugee in international law and attracted new parties to that definition[97].


On an aside point, and in relation to IDPs a further protocol (or a more amending 1967 Protocol) which removed the expression ‘outside the country of his nationality’[98] would be a huge step to the possible extension of international protection to IDPs. There is actually a basis for this as since all universal human rights treaties do not contain any geographical limitations, the 1967 Protocol (which can surely be considered a human rights instrument) should be altered as suggested above to make it consistent with those treaties[99]. However, the likelihood or practicality or such an unfolding of events is highly suspect.


(2) Persecution and the Refugee Convention and 1967 Protocol:


The drafting of Article 1 of the Refugee Convention received a huge amount of attention[100] and a common accusation made is that the focus is always on who a refugee is[101], rather than what to do about his or her plight. Linked closely to what refugees are is the concept of persecution, which is yet to receive a universally agreed upon definition[102]. This is extremely unfortunate considering that it is such a key aspect of the Refugee Convention and thus the international framework of law concerning refugees. In fact, the notion of persecution is required to establish an individual’s status as a refugee and thus entitle him to claim rights under the Refugee Convention, so without doubt it is highly important. In addition, modern persecution is not as obvious or identifiable as it used to be in the past[103]. It is no longer a simple case of a state oppressing a people as there are now other actors involved. Despite this confusion, the principle of non-refoulement (which can be seen in Article 33 of the Refugee Convention) is entangled with persecution and is only offered by the Refugee Convention when such persecution can be established to exist. Since non-refoulement is considered by some to be one of the most important obligations[104] and the central part[105] of the Refugee Convention, it is extremely worrying that persecution is such an ambiguous concept.


When determining the status of a refugee, states must consider whether there is a well founded fear of persecution based on religion, nationality, race, membership of a particular social group or political opinion. The term fear results in an element of subjectivity being involved[106] in determining refugee status. However, the presence of the term well founded limits the subjectivity and introduces an element of objectivity. Unfortunately, refugee determination is not specified by the Refugee Convention exactly and much is left in the hands of individual states[107], which naturally will not result in uniformity. The UNHCR has produced a handbook to assist states in the interpretation of such matters[108] but there is suspicion that it is not given full attention by states[109]. Therefore, states are left to determine refugee status on their own and to consider for themselves whether or not there is the aforementioned well founded fear in each refugee’s case.


However, just because states may not be availing of the handbook produced by the UNHCR, that does not mean that the courts in those countries are ignoring it also. In addition, there have been some positive developments regarding the level of proof that is required to establish a well founded fear of persecution. One such example is the American case of INS v Cardoza-Fonseca[110]. It should be remembered that in general the standard of proof for criminal cases is beyond reasonable doubt and in civil cases the balance of probabilities is employed. However, in INS v Cardoza a different standard was created when dealing with refugee status determination cases and it is hailed as the most sensitive handling of refugee law by the Supreme Court[111]. A more likely than not test was not deemed suitable for cases involving refugees and a lower standard was deemed sufficient. This case is famous world wide and other jurisdictions have followed suit with terms such as reasonable chance and good grounds being employed. In many common law jurisdictions, there has to be a reasonable likelihood or good reason that the potential refugee has a well founded fear of persecution, which would seem to take into account the difficulty involved in a claimant for refugee status establishing his or her claim.


Finally, a comment should be made regarding a point alluded to earlier in this section, that in the modern world other actors as opposed to states may be involved in persecution. There have been times in recent years when countries such as France and Germany have employed an interpretation of persecution that excludes the role of non-state actors (a group becoming more important in a world trying to come to terms with international terrorism). It should be pointed out that the UNHCR does not adopt a similar position and recognises the possibility for actors other than states to be perpetrators of persecution which may result in refugee flows[112]. This point is simply to highlight that the good work seen in INS v Cardoza-Fonseca still can be undone by other decisions (especially future ones) until there is a binding set of guidelines that states must obey, rather than mere recommendations as seen in the UNHCR’s handbook.


(3) Concluding Remarks:


The question may be posed as to why such an analysis of persecution has been undertaken. The reality is that the concept of persecution is imperative to the process of determining whether an individual is a refugee or not. It is clear that if an individual is not a refugee, they cannot claim any of the rights contained within the Refugee Convention. However, of greater importance is the fact that if a person is not deemed to have a well founded fear of persecution, and thus not considered a refugee then the principle of non-refoulement becomes null and void. Since the Refugee Convention and international human rights documents such as the Universal Declaration of Human Rights[113] (hereafter referred to as the UDHR) do not provide for a right of refugees to be granted asylum[114], the principle of non-refoulement and thus the concept of persecution are hugely significant.


In conclusion, it is clear that the Refugee Convention and its 1967 Protocol are the most important and relevant documents to the refugees of the world. However, it is also apparent that these instruments are by no means perfect or conclusive. There is room for improvement. The problem is whether the international community should begin again and start from scratch or draft a new protocol to address any of the problems unaccounted for to date by the present instruments.

GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT (Chapter E)

In the last chapter an analysis was undertaken of the key international instruments that dictate and outline the law concerning refugees. Despite the fact that many criticisms can be levelled against them, it should be considered a positive point that there are such documents in existence. Unfortunately, in this regard it must be alluded to that there are no such legally binding instruments that concern the plight of IDPs. However that does not mean that the international community has failed to attempt to construct such instruments or at least considered their possible formulation. A brief look for documents dealing with IDPs analogous to the Refugee Convention and its 1967 Protocol is therefore presently required.


Essential to any would-be internationally binding document on IDPs is a universally agreed upon definition. A working definition on the international stage for many years was formulated in the United Nations and defined IDPs as:

… persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, systematic violations of human rights or natural or man- made disasters, and who are within the territory of their own country[115].

Of interest is the notion of having to flee suddenly or unexpectedly. Many conflicts throughout the world (whether they be internal or otherwise) are prolonged over a considerable number of years. In Northern Ireland for instance, the most recent civil unrest was obvious and real for over three decades. Persons born into such conflicts may be forced to flee internally at a later stage in their life but this could hardly be considered unexpected.


However this peculiarity was to be remedied with the formulation of the Guiding Principles on Internal Displacement[116] (hereafter referred to as the Guiding Principles). The Guiding Principles were a culmination of the work of several years[117] and removed the temporal aspect of the aforementioned United Nations 1992 working definition[118]. The definition that the Guiding Principles proposed therefore described IDPs as:

… persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border[119].

It is clear that the above definition is a broader and more encompassing one and did improve and correct the deficiencies of its predecessor. Also, it should be pointed out that the definition of IDPs found in the Guiding Principles is a lot more general and less specific than the definition of refugees found in the Refugee Convention, as modified by its 1967 Protocol. In this regard the Guiding Principles appear to be more in line with the thinking behind the OAU Convention. Also, the use of the term human rights in the definition would hopefully encompass socioeconomic rights rather than just civil and political ones as seen in the Refugee Convention.


The language found within the Guiding Principles is clear and thus could encourage international compliance. It gives IDPs the right to freedom of movement[120], both inside and outside the borders of their country[121]. The stance taken by the ICRC as discussed in chapter (B) with regard to the responsibility of the national authorities towards IDPs is mirrored in the Guiding Principles[122]. Also, as mentioned before the ICRC promotes the equal treatment of both IDPs and the general population and does not agree with preferential treatment being given to a defined category of people. Interestingly, the Guiding Principles attempt to secure that point of view but in a reverse way, stating that IDPs should be treated as well as the general population[123] and thus perhaps not more favourably.


Despite any highlighted positives about the Guiding Principles above, one problematic fact remains. The Guiding Principles are soft law[124]. They are not binding upon states and thus cannot achieve their highlighted goals without the consent and commitment of those states. As such, they are no more than a declaration, similar to the UDHR but without the historical moral weight attached. There is no doubt that the UDHR would have become obsolete and defunct if it were not for the legally binding covenants of the ICCPR and ICESCR, which cemented much of the content of the UDHR into international law. Declarations such as the UDHR are meant to be aspirational whereas a covenant such as the ICCPR for example is binding upon states[125] and thus surely of greater value. In this sense, if there is to be no binding instrument that promotes the provisions found within the Guiding Principles, then there is a great chance that those Guiding Principles will fade away and the IDPs of this world will still be left unprotected.


From the above analysis and the previous chapter, it is clear to see that refugees are better protected by the mechanism of international treaties and that IDPs really do not have any to rely upon. Granted, there has been a longer history regarding refugees and thus one would expect a greater level of protection to exist for them, but although the concept of IDPs is not as old it has still been around long enough to deserve the attention of the international community. The Guiding Principles are a step forward but still cannot provide real protection due to their unfortunate legal status and in truth, states rarely take action in any field unless it is in their interests or they are obliged to do so. It is obvious that the Guiding Principles do not affect the prized state ideal of sovereignty and thus are naturally preferred to any binding instrument, but without a legally binding set of rights or obligations, the status and position of IDPs will always remain uncertain.



THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (Chapter F)


The UNHCR is the United Nations body that essentially has responsibility for both refugees and IDPs. Though perhaps not intended to assume such accountability, the present day reality is that the UNHCR does act at times for both the aforementioned persons. Naturally such a body is of paramount concern to the present discussion, as from the previous two chapters it has been noted that there is no international treaty that assumes governance of such a unified role. The High Commissioner is elected by the General Assembly on nomination by the Secretary General and the role involves a large amount of promotion work regarding refugee matters. In essence though, the UNHCR is a subsidiary body of the General Assembly and is relatively powerless without its support. However despite this, the UNHCR does have its own Statute annexed to a General Assembly resolution[126] by which it is governed. In that regard it has been suggested that it is technically unable to act beyond this Statute[127] but recent history has shown this assumption to be not entirely correct and the Statute no longer encompasses the entire mandate of the UNHCR[128]. Its original mandate as granted by its Statute (which will be examined later in this chapter) was to protect refugees but over the years the General Assembly has passed resolutions which have extended the UNHCR’s competence beyond this single category[129].


Mention of the UNHCR also appears in the Refugee Convention[130] and thus its original and primary responsibility to refugees (and thus the 1951 Convention) is again in need of re-iteration. This is similarly mirrored throughout the OAU Convention. Despite its acknowledgement in the Refugee Convention and subsequent regional and international declarations and treaties, it began with a small budget and a life span of only 3 years[131]. Naturally this three year period was renewed and continues to be but there was obviously some uncertainty as to the future value of such a body. With that in mind, an analysis shall now be undertaken with regard to the Statute of the UNHCR and its expanded competence due to General Assembly resolutions.


(1) Statute of the UNHCR:


The UNHCR has a statutory duty to offer protection to refugees and to also engage in the search for permanent solutions to their problems and the problem of refugees itself[132]. These can be considered the two main functions of the UNHCR[133]. Interestingly, the idea of seeking a permanent solution would surely require that refugee producing countries become stable and the flow of refugees be halted. It is hard to see how this could be achieved without the international community providing assistance in some fashion to those countries and such assistance would more than likely necessitate work being done within the borders of the countries themselves. So even without the mention or consideration of IDPs, the UNHCR’s mandate at this early stage of analysis could be interpreted (albeit in an extremely liberal way) to mean that the UNHCR has a duty and responsibility to IDPs.


Article 6 of the UNHCR’s Statute details the categories of refugees that will come under the ambit of its jurisdiction. The language found in Article 6 is directly inspired by the Refugee Convention to the extent that the UNHCR has competence for those refugees as defined under the aforementioned arrangements and conventions etc. in addition to those with a well founded fear of persecution. This again displays the close ties that the UNHCR has with the Refugee Convention[134]. However despite such links, it must be pointed out that unlike the 1951 Refugee Convention which possesses restrictive limitations on who qualifies for refugee status (before its amendment by 1967 Protocol), the Statute of the UNHCR does not contain any such limitations[135] and in addition to the above competence just outlined has responsibility for ‘Any other person who is outside the country of his nationality …’[136] who satisfies the usual requirements.

As mentioned previously the High Commissioner has a hefty amount of promotion work to do with regard to refugee matters. Such promotion is statutorily required by Article 8 of the UNHCR’s Statute and involves promoting the ratification of conventions, suggesting amendments, refugee admissions and any other measures which improve the position that refugees generally find themselves in. However, the concept of promotion is not specific and can be broadly interpreted, perhaps to the degree that the UNHCR is expected not only to encourage ratification and amendment of conventions but also to draft new ones[137]. Though this is a broad interpretation and one that is not likely to receive much support, the fact remains that the UNHCR has the right and duty in fact to further the international law of refugees. This bears obvious relevance to the position that the Geneva Convention finds itself in today, with an increasing number of commentators labelling it as obsolete. The UNHCR has a responsibility to at least suggest amendments if the instrument that it has such a special relationship with, is to survive.


Concluding this section requires a brief look at the financial situation that the Statute dictates for the UNHCR. The UNHCR is meant to be a non-political and independent body and thus the means by which it supports its operations are of great interest. Firstly, the High Commissioner cannot appeal to government for funds without the prior approval of the General Assembly[138]. Secondly and more importantly, the High Commissioner has the right to refuse any offers of funds that he or she does not believe to be proper[139]. Such discretionary power could be employed to deny a donor country from attempting to then exert influence over the work and policy of the UNHCR and thus secures its neutrality. Though this could result in diplomatic rows, the fact that all expenditure of the UNHCR (other than administrative) is financed by voluntary contributions[140] (and thus mostly by developed countries) surely requires a strong stance to be taken by the High Commissioner to safeguard the office’s reputation. The financial support garnished to the UNHCR will be dealt with in further detail later in this chapter, but it is necessary to point out at this stage that such dependence on voluntary contributions also puts the High Commissioner in the un-envious position of desiring funds from countries that may have issues with the refugee agenda that the funds will be used to support[141]. This is not a practical or desirable set of circumstances for the funding of an organisation dealing with such sensitive matters.


(2) Expanded Competence of the UNHCR:


The UNHCR in recent years has been encouraged and required to enlarge its ambit of protection to include categories of persons other than refugees. Firstly, it should be stated that the Statue of the UNHCR does not overtly grant competence to the UNHCR for displaced persons who are still in their county of origin[142], i.e. IDPs. However in the world of human rights various institutions, committees and treaty bodies have often creatively interpreted their mandates in order to operate within a field initially thought outside their remit. Interestingly no such creativity was required with regard to the UNHCR as it was the General Assembly whom officially recognised the UNHCR’s developing mandate.


The first war in Iraq and the subsequent intervention by the international community is often regarded as the turning point in both the global attitude towards IDPs and the UNHCR’s involvement with them[143]. The facts concerning the war and the treatment of IDPs during this era are well researched and known and do not require a further analysis here. It is sufficient to point out that the Turkish government chose to close its borders for a period of time and a so-called safe area was establish within Northern Iraq by the United Nations with the assistance of the United States of America to accommodate displaced persons whilst they received humanitarian assistance[144], which was provided and organised primarily by the UNHCR. This trend of activity within county’s borders continues to the present day and was availed of during the civil unrest and war in the former Yugoslavia for example. Again, the facts of such distressing matters do not require in depth discussion as they are widely known and not specifically relevant to an analysis of the powers and mandate that the UNHCR now possesses.


Before considering the extended mandate to operate within countries that the General Assembly has bestowed upon the UNHCR, the question of whether this is the correct way forward or not must be answered. Put simply, should the UNHCR be active in a country that is producing refugees and if so why? During the early days of refugee law Dr. Nansen, as High Commissioner had a permanent representative in Russia[145] which at the time was suffering the effects of refugee flows. So even without the additional problem of IDPs, the UNHCR may benefit from being within the refugee producing country anyway. In addition, there is no one agency that has an ‘exclusive mandate’[146] for IDPs and thus there is a need for a body such as the UNHCR to step up and fill that gap. Also, being in the country would allow the UNHCR to truly understand the conditions that exist within that country[147] and therefore arrive at better solutions for both IDPs and refugees. With respect to this point it should be pointed out that the United Nations has not always had a field presence in many of the areas dealing with displacement problems[148].


The General Assembly began its support of in-country operations by expressing its support in paragraph 13 of a 1992 Resolution for UNHCR strategies that aimed at preventing conditions which resulted in refugee flows[149]. Naturally, such strategies involve protecting and providing assistance to IDPs and the country of origin in the hope that those IDPs will not have the need to flee their borders. The conditions it laid down to specifically allow the UNHCR to act in favour of IDPs were that the UNHCR was allowed:

… on the basis of specific requests from the Secretary-General or the competent principal organs of the United Nations and with the consent of the concerned State, to undertake activities in favour of internally displaced persons, taking into account the complementarities of the mandates and expertise of other relevant organizations;[150]

From the above it can be seen that the UNHCR requires a request from the Secretary General and needs the consent of the relevant state in order to be able to act. The UNHCR must also be aware of other bodies which may be of more relevance to the situation it seeks to take charge of.


This position was re-affirmed in another resolution which came the following year[151]. However in addition, the General Assembly added that that its support for such extended activity was especially strong in situations where such activity contributed to the prevention or solution of the problems associated with refugees[152]. So the General Assembly appeared to be re-emphasizing the original mandate of the UNHCR as one that is essentially linked to the plight of refugees. This was a stance though that the UNHCR itself was developing[153] at the time. A further resolution which re-affirmed the above[154] also reminded the UNHCR that such activities were not to undermine the concept of asylum in any way[155]. This seems like the General Assembly was making sure that even though the mandate of the UNHCR had obviously been extended to situations involving IDPs, it was not to forget its original place and purpose in the international legal system with respect to refugees. The most recent relevant resolution[156] to the UNHCR shows no change from the above in attitude by the General Assembly.


(3) Concluding Remarks:


It is clear that the modern work of the UNHCR involves working in countries that are producing refugees. In order to improve the conditions that are causing refugee flows the UNHCR must improve the circumstances experienced by the entire population[157] which in turn will naturally ameliorate the plight suffered by IDPs. Returning to the issue of finance it must be pointed out that the majority of the contributions that the UNHCR depends on come from a small number of developed nations and thus there is always the danger that such countries may influence (or at least be accused of influencing) the policy of the UNHCR for their own purposes. If this was the case and the UNHCR lost its credibility in certain situations then it would not remain a relevant organization to the displaced peoples of the world[158]. As there is no other agency to take its place this is a very worrying predicament. The suffering of refugees would also continue as such countries may influence the UNHCR in a way that encourages keeping refugees within their country of origin (and thus denying them refugee status) which might be unable to deal even with its IDPs. A solution would be to establish a mandatory rather than voluntary contribution system for the benefit of the UNHCR or at least guarantee it a minimum budget for more than just administrative costs. Leaving that aside however it is clear that the UNHCR owes a responsibility to both refugees and IDPs and thus both categories enjoy some level of equal protection which, as seen earlier, is not mirrored in any international treaty.


EUROPE AND ASYLUM ISSUES (Chapter G)


Moving away from the global treatment of refugees and IDPs, the examination of a more regional viewpoint is required and thus the case of Europe and more specifically the European Union will now be briefly analyzed. As seen above, Europe was essentially where the origin of the concept of refugeehood came from. Indeed the first arrangements, conventions and treaties about refugees were constructed with the broader notion of European citizens in mind and an eagerness to ameliorate their plight. With respect to IDPs, since Europe now possesses vast quantities of wealth in some of its Member States, this could give rise to a reluctance to accept refugees from around the world and an eagerness to keep fleeing persons within the borders of their countries of origin. It is easy (and desirable for many countries) to forget the troublesome past of Europe if one looks at the strength and confidence which it possesses today and thus an understanding of refugees and IDPs by those Member States of the European Union may not always be the most humanitarian or people-oriented one imaginable. With that in mind, a concise outline of the European Union is required before an analysis of the stance which it takes in respect to asylum matters is undertaken.


(1) Current Structure of the European Union:


The structure of the European Union that is in place today derived from the Treaty on European Union[159] (hereafter referred to as the Maastricht Treaty). Essentially what was created by the Maastricht Treaty was a three pillar system[160] which became known as the European Union. Pillar 1 consisted of the three founding treaties relevant to the community that was Europe and any relevant amendments that were being made to such treaties. Pillar 2 was in control of matters that related to the foreign and security policies of the European Union and the third pillar dealt with matters of justice and home affairs, which included the subject of asylum. It must be stated that from the outset the origins of this European Union were inherently based on the idea of economics[161]. This is not an overtly negative suggestion or a point of criticism but it is of much relevance as although the ideologies of both human rights and trade may share similar origins, they have taken dramatically different paths as they developed. So, since the treatment of refugees and IDPs is a human rights matter, there would be no automatic reason to assume that the Maastricht Treaty would treat them favourably.


Operating within these pillars were three main bodies that are worthy of note. The European Council and the Council (hereafter referred to as the Council of Ministers) were and are the two most obviously political organs. The former consists of the heads of states and the latter is made up of representatives from each Member State and who possess a ministerial role in their home nations. To balance out these bodies there is also the European Parliament. This is the only democratically elected European institution and thus could be argued as the only accountable one as well. However, despite the obvious importance of a democratically elected body, the powers it possesses are not always as great as one might assume, especially when compared to the aforementioned politicized bodies. With regard to the above pillars, the European Council and the Council of Ministers always had greater involvement and more control than the European Parliament did over the second and third pillars[162]. That meant that in the late 1980s and early 1990s, the only means of discussing the coordination of asylum law (and thus any law that may affect the lives of refugees and IDPs) was at an inter-governmental level[163].


However, The Treaty of Amsterdam[164], which is the most recent European treaty of relevance to our present discussion, brought matters of immigration (which the European Union considers along with asylum rather than treating them as the separate subjects they are) under the umbrella of pillar 1 and thus out of the purely inter-governmental sphere. The provisions of the Treaty of Amsterdam were drafted to amend previous treaties such as the Maastricht and then their effect lapsed once such amendments took place[165]. With regard to matters of asylum, immigration and the procedural elements associated with them, the Treaty of Amsterdam did make it clear that various measures, rules and standards had to be adopted within a period of five years after its entrance into force. Before analyzing such measures it should be pointed that European Union law consists of a range of means to achieve its ends. For instance European Union Regulations are considered binding and are directly applicable[166] (sometimes interpreted as meaning that individuals can rely on these in their national courts) in all states. Directives are only binding as to the desired end that is to be achieved[167] and European Union Recommendations are not binding and often considered as nothing more than suggestions.


(2) Recent European Union Law Regarding Asylum:


Accompanying the encouraging developments made by the Treaty of Amsterdam was a curious protocol which concerned the concept of asylum for nationals of the Member States of the European Union[168] (hereafter referred to as the Amsterdam Protocol). The major point of contention with regard to the Amsterdam Protocol is the fact that it considers all Member States of the European Union as safe countries of origins. Firstly, it should be pointed out that although all European Union measures are meant to be taken in line with the Refugee Convention, the Amsterdam Protocol is technically in breach of the non-discrimination article found within the Refugee Convention[169], which specifically denies discrimination on the basis of country of origin. In effect, such European Union countries are presumed to be non-refugee producing and safe to be returned to. The Amsterdam Protocol obviously favors states by providing limited circumstances in which an asylum application can be made by a Member State national, rather than providing limited circumstances by which such an application cannot be made. Also, if all countries are considered safe, they therefore surely can never be seen to be producing or accommodating IDPs, which effectively denies the possible existence of such persons throughout the European Union. Finally, it should be pointed out that Belgium felt obligated by its ratification of the Refugee Convention and the 1967 Protocol to continue carrying out examinations of asylum applications from other Member State nationals. However, Belgium was not joined by other Member States in this regard and the Amsterdam Protocol dictates that such examination must be undertaken on the basis that the application is manifestly unfounded[170]. Such a presumption is quite damning and hard to balance with notions of due process.


Before the next attempts were made by the European Union to legislate on the area of asylum, the European Council held a summit in Tampere in 1999 to discuss various areas of interest to the European Union, including the notion of asylum. The general feeling from this summit was one of a welcoming spirit. Migration and asylum were recognized as different, although closely connected subjects of concern to the European Union and the inclusion of those individuals living outside the borders of the European Union was seen as a valid course of action. As such, there was quiet confidence about what could be subsequently achieved.

With that in mind the next European Union legislative attempt of relevance is the Council Regulation of 2003[171] (hereafter referred to as the 2003 Regulation). The 2003 Regulation was a direct result of the consideration of third-country nationals (i.e. those persons who were nationals of countries outside the European Union) at the Tampere Summit by the European Council. The crux of the 2003 Regulation was that a single European Union Member State would always be responsible for examining an asylum application from a third-country national[172]. The Member State in question would be the first country that the asylum seeker sought asylum as long as that Member State satisfied various requirements which justified it taking charge of the application. In truth, Europe had tried for many years to reach some concord on this concept[173]. The first attempt at this had been what is commonly referred to as the Dublin Convention[174]. Of interest and deserving of some criticism is that whichever country the would-be refugee arrived in first was the one that he had to remain in, which in essence was introducing a geographical limitation despite the long tradition of the 1967 Protocol removing such limitations globally[175].


The 2003 Regulation pushed the presumption found within the Amsterdam Protocol further by claiming that all Member States were considered safe countries for nationals from lands outside the European Union[176], which meant that such nationals could supposedly enjoy asylum in Member States without fear. There seems to be an element of arrogance in this presumption and a feeling of superiority among Member States of the European Union. As stated above, much of the focus of the 2003 Regulation is to do with assigning responsibility to a specific state. In fact, Member States can call upon other European Union governments to assume responsibility if they discover that such governments must bear the responsibility[177]. Such harmonization is encouraging in the sense that many complaints have been made in this essay that without a universal procedure with respect to refugees, there can be no guarantee of non-refoulement and other rights. However, assuming all Member States to be safe and forcing an asylum seeker to remain in the first country they reach, regardless of the language, customs and ethnicity of that Member State seems short sighted. In addition, even though ratification of the Refugee Convention is a pre-requisite to membership of the European Union, the fact that states party to it have sizeable lee-way with regard to its application, means that all Member States of the European Union could interpret it differently and thus not all be genuinely safe.


The final attempt of interest by the European Union to legislate with regard to matters relevant to this discussion is the earlier Council Directive of 2001[178] (hereafter referred to as the 2001 Directive), which was concerned with the mass influx of displaced persons into the European Union. The war in the former Yugoslavia can be concluded as one of the major catalysts in the construction of the above. The 2001 Directive was again limited to persons coming from third-countries, offered only temporary protection and failed to define what a mass influx of peoples would actually consist of. Regarding the issue of temporary protection, this would assume that there is an automatic time limit placed upon wars etc. Indeed, the 2001 Directive provides that protection shall last only one year with an allowance for extension over another single year[179]. It is hard to highlight the occurrence of a war in recent times that had a correctly suggested timeline attached to it prior to hostilities. In addition, the fact that temporary protection cannot be enjoyed concurrently with the status of asylum seeker[180] could be seen as a disincentive to apply for the latter.


(3) Concluding Remarks:


The above is not an exhaustive analysis of the law of the European Union. Instead it was an attempt to show how the European Union does not appear to be living up to its obligations under the Refugee Convention and the 1967 Protocol. The legislative moves made by the European Union seem to favour its Member States and protect their interests whilst only viewing the plight of refugees and asylum seekers as secondary. In addition, its supreme confidence in its Member States’ apparent safety with regard to refugees does not take into consideration the individualistic nature of the Refugee Convention and general international law relating to refugees. Such a position also removes the concept of IDPs from the language and thoughts of the European Union which is not a positive step, whether it feels it does not have any within its borders or otherwise. The history of refugee protection found its origins in Europe but it may not see its future there.


POSSIBLE WAYS FORWARD FOR BOTH REFUGEES AND IDPS (Chapter H)


Without doubt there are currently many ways and means in place for protecting both refugees and IDPs. Though some may be criticized for numerous reasons, the fact still remains that there are international and regional agreements regarding displaced persons, organizations with refugee inspired mandates and persuasive (even if not binding) instruments dictating standards of international law. There is no complete or perfect legal system which safeguards the rights of all its citizens. As such, there is no reason to believe that it is possible to achieve a similar utopian model on the international stage. Any law which relates to refugees or IDPs is bound to be influenced by and based upon human rights if it is to be of real value. Despite its importance and the position which it holds today human rights law is still a relatively new concept. As such and since the development of human rights can be painfully slow and at times fruitless, the same must also be said for the areas of law that it influences. This includes the law relating to refugees and IDPs. With that in mind, a brief look at the possible future paths that the world may take with regard to the protection of refugees and IDPs is presently required.


The first, albeit drastic development that the world may choose to take is to give in to those commentators whom suggest that the Refugee Convention and its 1967 Protocol are obsolete and thus deserving of repeal. Obviously if the aforementioned instruments were removed there would be a huge void in the law relating to refugees. Even some commentators, who recognize that the Refugee Convention has obvious deficiencies, still point out that the principle of non-refoulement and its subsequent cementation into international law is a huge positive associated with the present system[181]. That is not to say that one principle alone can justify a whole system but since non-refoulement is the most basic and important need of those who flee persecution, it is necessary to highlight that the Refugee Convention and the 1967 Protocol have essentially managed to established its position in customary international law. Also, the fact is that if the aforementioned instruments were to be removed they would obviously need replacement. With that in mind, surely an amendment or new protocol could achieve the same results as drafting a new convention and would do so in a much smoother fashion. In fact, the Statute of the UNHCR specifically provides for the High Commissioner to promote the protection of refugees by encouraging such developments. Therefore, it is presently suggested that the way forward does not include abandoning the Refugee Convention or the 1967 Protocol.


Next to be considered and more directly related to the troubles faced by IDPs is the postulation of a separate and legally binding convention dealing solely with IDPs. Though this has been considered at various points throughout this essay, it has never been wholly endorsed. Firstly, an impetus to do so would stem from the fact that refugees have their own convention and thus IDPs require one. However, no matter how similar refugees and IDPs are, they still find themselves in different legal categories[182] and thus need different remedies to alleviate their relative suffering. Secondly, the notion of state sovereignty is an obstacle that will never be legislated away by the states of the world and thus a convention relating to IDPs would not be able to break down this major barrier which would be a necessity if it were to be considered of real value. Thirdly, the presence of the Guiding Principles has not necessarily created a drastic change in attitude towards IDPs. Though it has been argued earlier that binding obligations are needed to give the Guiding Principles a chance of survival, there is no overwhelming evidence to suggest that such a course of action is even favored by advocates of the protection of IDPs. However, it must be pointed out that though there are respected authors who do not consider a legal definition of IDPs to be a seminal issue when compared with more practical considerations[183], this author feels that a definition is highly desirable. With definition comes recognition. That aside, the suggestion of a separate convention solely dealing with IDPs is not the best way forward either.


A third option would be to withdraw from a world-wide focus and concentrate on a more regional one, as seen with the laws developed by the European Union. In this regard it has been suggested that the notion of temporary protection has often, and at times inaccurately, been described as a regional solution[184] with protection sometimes being withheld from those in need who happen to find themselves born outside the borders of the region in question. Temporary protection has also traditionally been linked with the mass movement of displaced persons. As seen above with the 2001 Directive, the European Union grants protection of a temporary nature to third-country nationals. Though earlier criticized it is worth noting that temporary protection can be an attractive option from both a state and refugee point of view. In this regard, temporary protection may encompass those persons who are not protected by the Refugee Convention and thus satisfy the latter’s needs whilst at the same time being attractive to states that are overburdened with asylum applications who do not wish to commit themselves permanently thus satisfying the former’s wishes[185]. However, leaving the notion of temporary protection aside, to focus on regional solutions will not produce common standards. In fact if one compares the analysis of the European Union and the earlier mention of the OAU Convention, it becomes obvious that there can be a drastic disparity of treatment between regions. This will not help refugees (or IDPs for that matter) as internationally universal standards are a must in this field of law. Therefore, though a regional focus may help some refugees and IDPs, it will not help them all and thus is not the ideal way forward.


A fourth and very common suggestion concerning the future path that the international protection of refugees and IDPs may take is that it should be based firmly in the hands of other human rights institutions. It has been noted that since the UNHCR has direct responsibility for refugees, their cause has been kept separate and removed from the general United Nations human rights framework[186]. In this regard it should firstly be stated that no matter how much inter-organ communication takes place between the UNHCR and the human rights bodies, whoever has responsibility for refugees (and IDPs) will ultimately dictate their future. However, if it is true that a narrow interpretation of the Refugee Convention is forcing many would-be refugees to seek recourse from the human rights treaty bodies instead[187], then the UNHCR must endeavor to improve communications with states that are party to the Refugee Convention and encourage the employment of a broader interpretation. Allowing matters concerning refugees to move deeper into the world and framework of human rights would at present complicate concepts such as persecution (a key aspect of the Refugee Convention) as human rights advocates generally call for socioeconomic conditions to be encompassed within such a definition. Though this is a valid argument, the fear that states would withdraw from the Refugee Convention if such a path was taken is too great to ignore. Therefore, until there is greater political will to do so this path should not be followed.


The final approach considered of worth is to simply leave the current system in place. This would entail the continuation of the dominance of the Refugee Convention and the 1967 Protocol on the world stage and the acceptance of a lack of any binding legal instrument which concerns IDPs. The old saying that if something is not broken it should not be fixed does not entirely apply however. For instance, if the current system was left in place it would only attain success in the future if the UNHCR continued to promote the development of international refugee protection and also continued to expand its mandate. Promoting further development may or may not encompass the suggestion of possible amendments to the Refugee Convention, but none that should drastically change its object and purpose. The expansion of its mandate is crucial if there is to never be a set of binding obligations regarding IDPs. In this regard, the presence of the UNHCR in refugee producing and IDP accommodating countries is a must. The UNHCR’s presence must be understood internationally to be serving the needs of both refugees and IDPs and not just preventing refugee flows. If the UNHCR is to operate within safe havens or protected areas in refugee producing countries, then those areas cannot be a substitute for asylum or give way to a lower standard of protection offered to the potential refugees of the world[188].


Of the above five options, the last suggestion appears to be the most practical and feasible in the present climate. It would safeguard the rights of refugees that are currently being protected and provide an opportunity for the (albeit slow) development of the international system. In addition, the plight of IDPs is not ignored by the proposed final option and gives their cause some hope for amelioration.


CONCLUSION (Chapter I)

Refugees and IDPs do indeed share similar problems but must rely on different solutions in the present international framework. Granted, the solutions that are available may not presently be sufficient but as the cause of human rights becomes more centrally aligned with the interests of states, so refugee law and the treatment of IDPs will improve. The work of the UNHCR is essential to the future of both refugees and IDPs but it must endeavor to remain non-political, independent and above all else relevant. Developments made regionally, though naturally welcome, will never result in world wide change and since the essence of current international refugee law and the barricade preventing IDPs to such entitlement is the concept of borders, then the best forum will always be international. Therefore, the international community must universalize its definition, treatment and understanding of both refugees and IDPs. Otherwise, there will always be those who are left behind.

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[173] See supra note 18 at 88.
[174] Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (Dublin Convenion) [1997] OJ C254/1; 30 ILM 425 (1991).
[175] See supra note 161 at 320.
[176] See paragraph (2) of the Preamble supra note 171.
[177] See Article 17(1) supra note 171.
[178] Council Directive (EC) 2001/55 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12.
[179] See Article 4(1) supra note 178.
[180] See Article 19(1) supra note 178.
[181] Ahilan T. Arulanantham, ‘Restructured Safe Havens: A Proposal for Reform of the Refugee Protection System’ (2000) 22.1 Human Rights Quarterly 16-19.
[182] See supra note 11 at 235.
[183] See supra note 11 at 236.
[184] Joan Fitzpatrick, ‘Temporary Protection for Refugees: Elements of a Formalized Regime’ (2000) 94 Am J. Int’l L. 297.
[185] See supra note 184 at 287.
[186] See supra note 101 at 137.
[187] See supra note 101 at 160.
[188] See supra note 181 at 38.

List of Resources

· Ahilan T. Arulanantham, ‘Restructured Safe Havens: A Proposal for Reform of the Refugee Protection System’ (2000) 22.1 Human Rights Quarterly 1.

· Alan Bullock, Hitler and Stalin: Parallel Lives (Fontana Press, London 1993).

· Atle Grahl-Madsen, ‘Identifying the World’s Refugees’ in Peter Macalister and Gudmundur Alfreddson (eds), The Land Beyond: Collected Essays on Refugee Law and Policy (Martinus Nijhoff Publishers, The Hague 2001).

· Atle Grahl-Madsen, ‘Fridtjof Nansen’ in Peter Macalister and Gudmundur Alfreddson (eds), The Land Beyond: Collected Essays on Refugee Law and Policy (Martinus Nijhoff Publishers, The Hague 2001).

· Atle Grahl-Madsen, ‘The League of Nations and the Refugees’ in Peter Macalister and Gudmundur Alfreddson (eds), The Land Beyond: Collected Essays on Refugee Law and Policy (Martinus Nijhoff Publishers, The Hague 2001).

· Brian Gorlick, ‘Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status’ (2003) 15 Int’l J. Refugee L. 357.

· Brian Gorlick, ‘Human Rights and Refugees: Enhancing Protection through International Human Rights Law’ (2000) 69 Nordic J. Int’l L. 117.

· Catherine Phuong, The International Protection of Internally Displaced Persons (Cambridge University Press, Cambridge 2004).

· Conor Gearty, Can Human Rights Survive (Cambridge University Press, Cambridge 2000).

· Corinne Lewis, ‘UNHCR’s Contribution to the Development of International Refugee Law: Its Foundations and Evolution’ (2005) 17 Int’l J. Refugee L. 67.

· Daniel J. Steinbock, ‘Interpreting the Refugee Definition’ (1998) 45 UCLA L. Rev. 733.

· Daniel J. Steinbock, ‘The Refugee Definition as Law: Issues of Interpretation’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities (Cambridge University Press, Cambridge 1999).

· E. Odhiambo-Abuya, ‘Refugees and Internally Displaced Persons: Examining Overlapping Institutional Mandates of the ICRC and the UN High Commissioner for Refugees’ (2003) 7 Sing. J. Int'l & Comp. L. 236.

· Elizabeth E. Ruddick, ‘The Continuing Constraint of Sovereignty: International Law, International Protection, and the Internally Displaced’ (1997) 77 B.U. L. Rev. 429.

· Elspeth Guild, ‘The Impetus to Harmonise: Asylum Policy in the European Union’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities (Cambridge University Press, Cambridge 1999).

· Erin D. Mooney, ‘In-Country Protection: Out of Bounds for UNHCR’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities (Cambridge University Press, Cambridge 1999)

· François Bugnion, ‘Refugees, Internally Displaced Persons, and International Humanitarian Law’ (2005) 28 Fordham Int'l L.J. 1397.

· Geoff Gilbert, ‘Rights, Legitimate Expectations, Needs and Responsibilities: UNHCR and the New World Order’ (1998) 10 Int’l J Refugee L. 349.

· H. Lauterpacht, ‘International Law and Human Rights’ in Henry J. Steiner and Philip Alston, International Human Rights in Context (2nd Edition, Oxford University Press, Oxford 200).

· Henry J. Steiner and Philip Alston, International Human Rights in Context (2nd Edition, Oxford University Press, Oxford 2000).

· H.L.A. Hart, The Concept of Law (2nd Edition, Oxford University Press, Oxford 1994).· Iain Guest, ‘The United Nations, the UNHCR, and Refugee Protection: A Non-Specialist Analysis’ (1991) 3 Int’l J. Refugee L. 585.

· James C. Hathaway, ‘A Reconsideration of the Underlying Premise of Refugee Law’ (1990) 31 Harv. Int’l L.J. 129.

· James C Hathaway, ‘The Evolution of Refugee Status in International Law’ (1984) 33 Int’l & Comp. L.Q 348.

· James C. Hathaway and Anne K. Cusick, ‘Refugee Rights and not Negotiable’ (2000) 14 Geo. Immigr. L.J. 481.

· J.M. Kelly, A Short History of Western Legal Theory (Oxford University Press, Oxford 1992).

· Joan Fitzpatrick, ‘Revitalizing the 1951 Refugee Convention’ (1996) 9 Harv Hum. Rts. J. 229.

· Joan Fitzpatrick, ‘Temporary Protection of Refugees: Elements of a Formalized Regime’ (2000) 94 Am. J. Int'l L. 279.

· Katherine S. Williams, Textbook on Criminology (4th Edition, Oxford University Press, Oxford 2001) 326.

· Kristen Walker, ‘Defending the 1951 Convention Definition of Refugee’ (2003) 17 Geo. Immigr. L.J. 583.

· Laura Barnett, ‘Global Governance and the Evolution of the International Refugee Regime’ (2002) 14 Int'l J. Refugee L. 238.

· Lex Takkenberg, The Status of Palestinian Refugees in International Law (Oxford University Press, Oxford 1998).

· Louise W. Holborn, ‘The Legal Status of Political Refugees, 1920-1938’ (1938) 32 Am. J. Int’l L. 680.

· Luke T. Lee, ‘Internally Displaced Persons and Refugees: Toward a Legal Synthesis?’ (1996) 9 J. Refugee Stud. 27.

· Luke T. Lee, ‘The Refugee Convention and Internally Displaced Persons’ (2001) 13 Int’l J. Refugee L. 363.

· Michael Barutciski, ‘Critical View on UNHCR’s Mandate Dilemmas’ (2002) 15 Int’l J. Refugee L. 365.

· Patricia Tuitt, ‘Rethinking the Refugee Concept’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities (Cambridge University Press, Cambridge 1999).

· Paul Craig and Grainne De Burca, EU Law: Text, Cases, And Materials (3rd Edition, Oxford University Press, Oxford 2003).

· Reinhard Marx, ‘The Criteria of Applying the “Internal Flight Alternative” Test in National Refugee Status Determination Procedures’ (2002) 14 Int'l J. Refugee L. 179.

· S. Alex Cunliffe and Michael Pugh, ‘UNHCR as Leader in Humanitarian Assistance: A Triumph of Politics over Law?’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities (Cambridge University Press, Cambridge 1999).

· Simon Bagshaw, Internally Displaced Persons at the Fifty-Fourth Session of the United Nations Commission on Human Rights, 16 March—24 April 1998’ (1998) 10 Int’l J. Refugee L. 548.

· Susan Marks and Andrew Clapham, International Human Rights Lexicon (Oxford University Press, Oxford 2005).

· Tom Clark, ‘Rights Based Refuge, The Potential of the 1951 Convention and the Need for Authoritative Interpretation’ (2004) 16 Int’l J. Refugee L. 584.

· UNCHR ‘Analytical Report of the Secretary General on Internally Displaced Persons’ (14 February 1992) UN Doc E/CN.4/1993/23.

· UNHCR Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1 January 1992) HCR/1P/4/Eng/Rev.2.

· UNCHR ‘Report of the Representative of the Secretary General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39. Addendum. Guiding Principles on Internal Displacement’ (11 February 1998) UN Doc E/CN.4/1998/53/Add.2.

· UNHCR ‘UNHCR Position Paper on Relocating Internally as a Reasonable Alternative to Seeking Asylum (The So-Called “Internal Flight Alternative” or Relocation Principle”)’ (9 February 1999) accessed 12 August 2007.

· Volker Turk, ‘The Role of the UNHCR in the Development of International Refugee Law’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities (Cambridge University Press, Cambridge 1999).

· William L. Shirer, The Rise and Fall of the Third Reich (Pan Books Ltd, London 1964).· William Schabas. ‘Reservations to the Convention on the Rights of the Child’ Human Rights Quarterly 18.2 (1996) 473.

· ——, ‘Internally Displaced People’ (International Committee of the Red Cross Publication 2007) accessed 10 August 2007.

· ——, ‘Iraqi Refugees, Asylum Seekers, and Displaced Persons: Current Conditions and Concerns in the Event of War’ (Human Rights Watch Briefing Paper, February 13 2003) accessed 25 August 2007.

Table of Legislation


· Arrangement of 5th July 1922 with Regard to the Issue of Certificates of Identity to Russian Refugees (5 July 1922) 355 LNTS 238.

· Arrangement of 12th May 1926 relating to the Issue of Identity Certificates to Russian and Armenian Refugees (12 May 1926) 2004 LNTS 48.

· Arrangement Concerning the Extension to Other Categories of Refugee of Certain Measures taken in Favour of Russian and Armenian Refugees (30 June 1928) 2006 LNTS 65.

· Arrangement Relating to the Legal Status of Russian and Armenian Refugees (30 June 1928) 2005 LNTS 55.

· Convention Relating to the International Status of Refugees (28 October 1933) 159 LNTS No. 3663.

· Convention Concerning the Status of Refugees Coming from Germany (10 February 1938) 4461 LNTS 61.

· Constitution of the International Refugee Organisation (adopted 15 December 1946, entered into force 30 August 1948) 18 UNTS 3.

· Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR).

· UNGA Res 428(V) (14 December 1950) UN Doc A/RES/428 (V).Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).

· Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267.

· Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45 (OAU Convention).

· International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force January 3 1976) 993 UNTS 3 (ICESCR).International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

· Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (Dublin Convenion) [1997] OJ C254/1; 30 ILM 425 (1991).

· Treaty on European Union 1992 (Maastricht Treaty).

· UNGA Res 47/105 (16 December 1992) UN Doc A/RES/47/105.

· UNGA Res 48/116 (20 December 1993) UN Doc A/RES/48/116.

· UNGA Res 49/169 (24 February 1995) UN Doc A/RES/49/169.

· Treaty of Amsterdam 1997.

· Treaty of Amsterdam 1997 Protocol on Asylum for Nationals of Member States of the European Union.

· Council Directive (EC) 2001/55 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12.

· Council Regulation (EC) 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1.UNGA Res 61/137 (25 January 2007) UN Doc A/RES/61/137

Table of Cases

· INS v Cardoza-Fonseca 480 US 421 (1987)