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INTRODUCTION
Those who would sacrifice freedom for security deserve neither.
Benjamin Franklin, 1738.
Not every migrant seeking asylum in another country falls under the
definition of ‘refugee’, according to the 1951 Convention Relating to the Status of
Refugee, a refugee is someone who
“[..] 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”.
The United Nations High Commissioner for Refugees (UNHCR) is the UN Agency
entitled to provide international protection and solutions for refugees. UNHCR
responses range from temporary protection, emergency actions, to durable solutions.
Temporary protection is an immediate short-term response when large
numbers of people arrive after fleeing armed conflict, massive violations of human
rights, or other forms of persecution. The aim of temporary protection is to ensure
protection in the “frontline” countries of asylum or elsewhere, as well as to provide a
coherent regional response. Countries of asylum may end temporary protection when
there is a fundamental change in the circumstances that prompted people to flee.
When such change occurs, experience shows that the vast majority of people can and
4
will return home voluntarily, as occurred in Germany during the Balkan crisis in the
‘90s.
Refugee emergencies are times of crisis for the refugees and often for the
country of asylum, which may be under pressure and may not be prepared to handle
the arrival of large numbers of people. Governments often rely on the international
community to help share the financial burden of emergencies. UNHCR provides
assistance to refugees at the request of governments and is usually responsible for
coordinating the response of the UN system, by working closely with the World
Food Programme, UNICEF, the United Nations Development Programme, and
others. An example of refugee emergency occurred on 9 April 2002, when a joint
programme UNHCR-IOM (International Migration Organisation) started assisting
Afghan refugees returning from Iran. The IOM has deployed dozens of staff and
trucks to the Iran/Afghan border crossing of Islam Qala. Through this joint
coordination, it had been possible to provide transportation to some 400,000 persons
expected to return this year from Iran. The returns took place six days per week at an
average rate of some 1,600 persons per day.
Finally, there are the three durable solutions:
Resettlement;
Voluntary repatriation to the country of origin;
Local integration in the country of first asylum.
This research will stress the importance of resettlement in the provision of
international protection for those people living in a “refugee protracted situations”
(i.e. victims of unsolved-lasting conflicts
1
, or living in refugee camps). According to
UNHCR data, people in a “refugee protracted situation” are 5.7 million of the
world’s 9.2 million refugees
2
. Those figures do not include the world's oldest and
largest protracted refugee situation, Palestinian refugees, who fall under the mandate
of the UN Relief and Works Agency for Palestine Refugees in the Near East
(UNRWA). Due to their particular condition, those refugees achieve protection
neither through voluntary repatriation, nor through effective protection or integration
1
Examples are: Burundians in Tanzania, Angolan refugees in Zambia, or Congolese refugees in
Tanzania.
2
UNHCR Global Trend 2011.
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into the country of first asylum. Resettlement in a third country is therefore the only
feasible solution for people in a refugee protracted situation.
Promoted by the UN High Commissioner for Refugees, resettlement involves
the selection and transfer of refugees from a state where they have sought protection,
to a third state that has agreed to admit them. As a protection policy, it cannot stand
alone, but should be an integral part of a comprehensive protection-asylum package.
As for the states, they are free to join the UNHCR resettlement programme – or not –
and to set the quotas of those refugees candidates for being admitted. The UNHCR
sponsors resettlement by persuading states of the importance of humanitarian aid,
and durable solutions for refugees. From a practical perspective, the UNHCR
resettlement programme lays on a totally voluntary basis, and this often leads to its
marginalisation within the local asylum system implemented by the states. Along
with this, states regularly admit asylum seekers, and sometimes a further specific
quota for resettlement does not seem necessary. Thus far, only twenty-six countries
3
have joined the UNHCR resettlement programme and together provided almost
80,000 places available every year. The UNHCR estimates the global resettlement
needs at about 800,000 people, that is ten times more than the available quotas. The
focus on durable solutions such as resettlement has to become central in the
management of refugees worldwide. But how is it possible to increase the
participation to the programme? This is the research question of this thesis. Is the
voluntary nature given to the programme the only problem that explains the lack of
available quotas for resettlement?
By following an ‘inverted pyramid’ methodology, the research furthers the
analysis from international resettlement standards, to state implementation. Through
this methodology, it will be possible to understand the reasons why some states join
the UNHCR resettlement programme, while some do not. In particular, the European
Union is a fertile ground to elaborate few models for resettlement and analyse those
cooperation problems that emerge in resettlement. This ‘inverted pyramid’ – from
international to State-based perspective – follows three subsequent parts.
3
USA, Australia, Canada, Sweden, Norway, Finland, New Zealand, Denmark, the Netherlands, Chile,
Colombia, Brazil, Ireland, Iceland, United Kingdom, Argentina, Czech Republic, Romania, Paraguay,
Portugal, Uruguay. Emerging resettlement countries: Bulgaria, Germany, Hungary, Spain, Japan.
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Part One (Chapter One and Chapter Two) provides a critical review of the
existing international juridical frame in the field of international protection and
refugees. In particular, the UNHCR will be explored following two inter-related
paths. First, an in-depth analysis of the governance and organisation of UNHCR will
allow a deeper understanding of UNHCR’s limit; second, the role played by UNHCR
in providing a valid forum for states to bargain solutions for refugees. Through this
critical review, it will be possible to identify the gaps of resettlement both from a
juridical and an institutional perspective.
Part Two (Chapter Three) will try to find a theoretical solution in order to
overcome those issues that emerged in Part One. The crucial question this part
addresses is under what conditions EU member states may be prepared to actively
engage in resettlement. Two theories give answer to this question: game theory, and
international public good theory. These theories have been largely used in
international relations to understand why lack of cooperation occurs between states.
Both theories are therefore able to define feasible scenarios in the development of an
international resettlement regime. Furthermore, by understanding the operational
issues at the basis of the lack of cooperation, it will be possible to translate the
theoretical outcomes into a sustainable model at the European level. The idea of
developing a European resettlement regime is quite recent. In 2000, the European
Commission suggested that ‘processing the request for protection in the region of
origin and facilitating the arrival of refugees on the territory of the member states by
a resettlement scheme are ways of offering rapid access to protection’
4
. On 29
March 2012, the European Parliament voted on the “Joint EU Resettlement
Programme”, already approved by the Council
5
. This vote paves the way for a EU
resettlement programme presented by the European Commission back in 2009. This
decision determines common EU resettlement priorities for 2013, and announces an
increase of the financial compensation for those member states that engage in
4
Communication from the Commission to the Council and the European Parliament, Towards a
common asylum procedure and a uniform status, valid throughout the Union, for persons granted
asylum. COM/2000/0755 final.
5
Position at first reading with a view to the adoption of a Decision of the European Parliament and
of the Council amending Decision No 573/2007/EC establishing the European Refugee Fund for the
period 2008 to 2013 as part of the General programme "Solidarity and Management of Migration
Flows" and repealing Council Decision 2004/904/EC
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resettlement under the EU resettlement programme. The EU Commissioner
Malmström welcomed the decision, stating that it is a much-needed measure that will
improve cooperation and allow the EU to pool resources for resettlement. At the
present, an agreed model for resettlement has not been achieved. By 1 May 2012,
member states have been asked to provide the Commission with an estimate of the
number of persons per category that they plan to resettle in 2013 (European
Parliament News, 29 March 2012
6
).
Finally, Part Three of this research presents and analyse four steady models
for resettlement in the European Union. Once member states have decided to engage
in resettlement, several basic policy questions need to be answered. Why conduct a
European resettlement programme? Which actors should be involved in the
resettlement process and why? How many refugees should be resettled – and where
from? Looking beyond the basics, the Commission and member states must address
two additional fundamental issues: what lessons to be learned from the past and
secondly, what role for UNHCR?
6
European Parliament Plenary Session, Asylum Policy, Financial incentives for EU countries to take
up more refugees, 29 March 2012. Available at:
http://www.europarl.europa.eu/news/en/pressroom/content/20120328IPR42048/html/Financial-
incentives-for-EU-countries-to-take-up-more-refugees
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CHAPTER ONE
1.1 THE INTERNATIONAL CONTEXT
OF REFUGEES
1.1.1 The 1951Convention Relating to the Status of Refugee and its
1967 Protocol.
Not every migrant seeking asylum in another country falls under the
definition of “refugee”, for this reason a good starting point is a definition.
According to the 1951 Convention Relating to the Status of Refugee, a refugee is
someone who
“[..] 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”.
A refugee has to fulfil the following criteria. First, there must be a well-founded fear
of persecution because of race, religion, nationality, membership in a particular
social group, or political opinion. Second, the asylum seeker must be outside her/his
country of origin. Third, because of that fear of persecution, she/he must be unable –
or unwilling – to avail him/herself of the protection of that country, or to return
9
there
7
. The Convention was drafted between 1948 and 1951 by a combination of
United Nations organs, ad hoc committees, and a conference of plenipotentiaries
8
.
Originally, the definition limited the application of the Convention only to refugees
who have acquired this status “as a result of events occurring before 1 January
1951”. In addition to this temporal clause, an optional geographical limitation
allowed states, on ratification, to limit their obligations to refugees resulting from
“events occurring in Europe” prior to the critical date
9
.
In 1967, in order to extend the Convention definition, the “Protocol relating
to the Status of Refugee” has been drafted, from that moment the Convention has
embraced refugees from all region of the world without any temporal limitation. The
1967 Protocol achieved the formal – but not substantive – universalisation of the
definition expressed in the 1951 Convention relating to the Status of Refugee.
However, there was no review conducted of the substantive content of the
definition
10
. Even after the removal of the temporal and geographic restrictions, only
persons whose migration is caused by a fear of persecution, on the ground of civil or
political reasons, come within the scope of the Convention-based protection
system
11
. This means that most Third World refugees remain de facto excluded, as
their flight is more often caused by war, famine, natural catastrophes, or political and
economic tumult rather than by “persecutions”. While it is quite obvious that these
phenomena rise genuine fear and flights from one’s home, refugees whose flight is
not motivated by persecution – or rooted in civil or political status – are excluded
from the rights regime recognised by the Convention.
The Protocol is often referred to as an “amendment” to the 1951 Convention,
but actually, it is an independent instrument, not a revision. This means that the
Protocol can be ratified – or acceded to – by a state without becoming party to the
Convention. States parties to the Protocol simply agree to apply Articles 2 to 34 of
the Convention to refugees defined in Article 1 thereof, omitting the dateline and the
geographical limit (article 1 of the Protocol).
7
189 UNTS 2545, “Convention Relating to the Status of Refugee”, entered into force on April 1954.
Article 1.
8
Hathaway J.C, (2005), The Rights of Refugees under International Law, Cambridge University Press,
p.2.
9
The “event” mentioned by these limitations is WWII.
10
Nathwani N. (2003), Rethinking Refugee Law, Martinus Nijhoff Publishers, p. 67.
11
Goodwin-Gill G.S. (1983), The Refugee in International Law, Clarendon Press, Oxford. p. 36.
10
The map below (Figure 1) shows the states that became party to the 1951
Convention Relating to the Status of Refugee, the 1967 Protocol, and both of them.
Figure 1
Source: UNHCR, States Parties to the 1951 Convention relating to the Status of Refugees
and the 1967 Protocol.
As of April 2011, Cape Verde, Swaziland, the United States of America and
Venezuela have ratified only the Protocol; while Madagascar, Monaco, Namibia and
St. Vincent and the Grenadines are party only to the Convention (Congo,
Madagascar, Monaco, and Turkey
12
have retained the geographical limitation).
12
Turkey is a party to the Geneva Convention of 1951 and the Protocol of 1967 only insofar as a
refugee is due to events occurring in Europe: “The instrument of accession stipulates that the
Government of Turkey maintains the provisions of the declaration made under section B of Article 1
of the Convention Relating to the Status of Refugees, according to which it applies the Convention
only to persons who have become refugees as a result of events occurring in Europe, and also the
reservation clause made upon ratification of the Convention to the effect that no provision of this
Convention may be interpreted as granting to refugees greater rights than those accorded to Turkish
11
The 1951 Refugee Convention also specifies when a person ceases to be a
refugee (so-called cessation clauses) and the circumstances when the Convention
cannot be applied (so-called exclusion clauses)
13
. Article 1.C of the Convention lists
and defines the cessation clauses. The principal circumstances are: voluntary re-
availment by a refugee of the protection of the country of his nationality, acquisition
of a new nationality, voluntary re-establishment in the country that he left owing to
fear of persecution. The exclusion clauses are contained in Article 1.D, E and F
of
the Convention. The Convention does not apply to persons who are receiving shelter
or assistance from organs or agencies of the United Nations other than the United
Nations High Commissioner for Refugees (UNHCR)
14
. When such protection or
assistance has ceased for any motivation, these persons shall ipso facto be entitled to
the benefits of the Convention. This exclusion clause is necessary to prevent an
overlapping of the competencies of different United Nations Agencies. For instance,
this clause applies to Arab refugees from Palestine who fall within the competence of
the United Nations Relief and Works Agency (UNRWA) and in the past applied to
Korean refugees who were the concern of the United Nations Korean Relief Agency
(UNKRA)
15
. Moreover, the Convention does not apply to a ‘person who is
recognised by the competent authorities of the country in which he has taken
residence, as having rights obligations attached to the possession of the nationality
of that country’
16
. Finally, Article 1.F excludes from the application of the
Convention persons who have an inter alia committed war crimes or serious non-
political crimes in their country of refugee before their admission to that country as
refugee.
The 1951 Convention and the 1967 Protocol still remain the principal
international instruments for benefiting refugees, and their definition has been
integrated in a variety of regional agreements aimed at further define those asylum
citizens in Turkey”. Appendix to Protocol Relating to the Status of Refugee, General Assembly
Resolution 2198 (XXI), 1967.
13
“Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees”, HCR/IP/4/Eng/REV.1
Reedited, Geneva, January 1992, UNHCR 1979. See Forewords 111-117 and Articles 140-141.
14
Article 1(D) of the Convention Relating to the Status of Refugee, 1951.
15
Asian-African Legal Consultative Committee (1973), The Rights of Refugees, Published by The
Secretariat of the Committee, New Delhi, India. Pp. 32-34.
16
Article 1(E) of the Convention Relating to the Status of Refugee, 1951.
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seekers who can be accepted as refugees
17
. Together with the definition of refugee,
the 1951 Convention and its Protocol state another fundamental point, the “non-
refoulement principle”.
The principle of non-refoulement states broadly that no refugee should be
returned to any country where she/he is likely to face persecution or danger to life or
freedom
18
. The term refoulement derives from the French verb ‘refouler’, which
means to drive back. In the specific case of immigration control, it defines the return
to the frontier of those discovered to have entered illegally a country, and the refusal
of admission of those without valid papers. The refoulement is therefore to be
distinguished from expulsion or deportation, the more formal process whereby a
lawfully resident alien may be required to leave a state, or be forcibly removed
19
.
The non-refoulement principle is often referred to one of the cornerstones of
the international refugee protection system
20
. It is not merely a right to be granted
asylum, it also guarantees that no refugee will be sent back to a place where she/he
will be persecuted. Thus, this principle constituted the strongest commitment that the
international community of states has done to provide shelter to refugees. At the
same time, the non-refoulement obligation is the first step to access to all subsequent
rights that may be obtained under the 1951 Refugee Convention. Without this, little
else matters. The non-refoulement principle, as enshrined in Article 33 of the
Refugee Convention, states as follows:
1. No Contracting State shall expel or return (“refouler”) a
refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular
social group or political opinion.
17
For instance: The 1969 AU/OAU Convention Governing the Specific Aspects of Refugee Problems in
Africa; the 1984 Cartagena Declaration (for Latin America); or many agreements and Conventions
developed by the European Union.
18
Article 33 of the Convention Relating to the Status of Refugee, 1951.
19
Hurwitz, A.G. (2009), The Collective Responsibility of States to Protect Refugees, Oxford
Monographs in International Law. P. 174.
20
UN High Commissioner for Refugees, UNHCR Note on the Principle of Non-Refoulement, November
1997, available at: http://www.unhcr.org/refworld/docid/438c6d972.html.
13
2. The benefit of the present provision may not, however, be
claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which
he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the
community of that country.
In addition to the 1951 Convention and 1967 Protocol, the principle of non-
refoulement is powerfully expressed in Article 3 of the 1984 United Nations
Convention against Torture
21
. Also, article 7 of the 1966 International Covenant on
Civil and Political Rights (ICCPR66), claims that “no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment”. This article has
been interpreted as containing an implied prohibition on refoulement
22
. It is a broader
definition than the one contained in the Convention against Torture, since it includes
also cruel, inhuman or degrading treatment or punishment as well.
International Humanitarian Law provides further support to the non-
refoulement principle. The 1949 Geneva Convention relative to the Protection of
Civilian Persons in Time of War defines ‘protected persons’ as ‘those who, at a
given moment and in any manner whatsoever, find themselves, in case of a conflict
or occupation, in the hands of a Party to the conflict or Occupying Power of which
they are not nationals’
23
. In addition, Article 45 provides that ‘protected persons
shall not be transferred to a Power which is not a Party of the Convention [...]’. In
no circumstances shall a protected person be transferred ‘to a country where he or
she may have reason to fear persecution for his or her political opinion or religion
beliefs’.
21
According to Article 3 of the UN Convention against Torture ‘no State Party shall expel, return
(‘refouler’) or extradite a person to another State where there are substantial grounds for believing
that she/he would be in danger of being subjected to torture. For the purpose of determining
whether there are such grounds, the competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the State concerned of a consistent
pattern of gross, flagrant or mass violations of human rights’.
22
Human Rights Committee, General Comment No. 31 (2004), Para. 12. Comments collected in UN
doc. HRI/GEN/Rev.8. 8 May 2006.
23
Article 4, International Committee of the Red Cross (ICRC), Geneva Convention Relative to the
Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS
287.
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