"Building a Better Refugee Status Determination System": Introduction
The numbers that provide a context for this issue on refugee status determination (RSD), though stark and well-known, bear repeating. In excess of two hundred million people live outside of their country of nationality. (1) Sixty-seven million people have been forcibly displaced from their homes. (2) Twelve million individuals have no country of nationality. (3) Of these overlapping populations, only about eleven million (4) fall under the definition of "refugee" within the meaning of the term set out in the mandate of the United Nations High Commissioner for Refugees (5) and as defined in the Convention Relating to the Status of Refugees of 1951. (6) In these statistics lie the challenges of refugee status determination (RSD): determining who is a "refugee" and, conversely, who is not. As to how this task should be accomplished, neither the treaty nor the statute is of much direct assistance: there are 46 articles in the Refugee Convention and 22 paragraphs in the Statute of UNHCR, none of which address the issue of RSD. And yet every year, over half a million individuals approach state or UNHCR officials and seek a determination that they are refugees. In Canada alone, over 25,000 individuals seek recognition of their status as refugees every year. (7) Decisions are made by states and UNHCR in a similar number of claims and there is a slowly shrinking backlog of 750,000 individuals who continue to await a determination of their status. Decisions are issued by a variety of officials and institutions: administrative officers of a state, quasi-judicial tribunals, courts, members of the political executive of states, and by agencies of the United Nations. (8) Amongst policy makers the problematic of RSD--of sorting out the eleven million refugees from a larger group of migrants and displaced persons--has become known as "the asylum-migration nexus" (9) or, more recently and more prosaically, the problem of "refugee protection and durable solutions in the context of international migration" (10) The articles in this issue of Refuge directly and indirectly engage with this problematic but collectively see the problem less as ensuring migrants do not access refugee protection and more as ensuring that refugee protection is in fact offered and legal protections guaranteed to refugees. As Care points out in his article in this issue, RSD has been with us in one form or another for more than a century. However, it has only been within the past few decades that RSD processes became widely entrenched in most Northern countries. As a guide to the more recent development of RSD, it is now almost three decades since the UNHCR's seminal global survey of RSD processes and the publication of its handbook on how RSD decisions should be made. Before these publications, there was almost nothing by way of common standards and guidelines that extended beyond the parochial study of the system presently in place in any given country. In the 30 years since these publications, a vast scholarship has emerged on the criteria that should be applied by decision-makers in RSD or, in short, the definition of a refugee. The cornerstones of the refugee law scholarship addressed in this issue were laid by Grahl-Madsen (11), Goodwin-Gill (12) and Hathaway. (13) Their work has enduring worth but precious little to say about RSD. Perhaps the neglect of RSD is simply a reflection of a relative inattention in the scholarship and in practice to the processes of law as opposed to its substance. Nonetheless, the debate over RSD has increased in recent years. European states and civil society turned their attention to the issue in the drafting of the European Union's minimum standards on RSD. (14) NGOs from the Global South have campaigned for UNHCR to reform its RSD. (15) Throughout the late 1990's numerous countries, including Canada, the United Kingdom, and Australia, immersed themselves in debates over the reform of their RSD processes. …
Governance, Governmentalities, and the State of Exception in the Palestinian Refugee Camps of Lebanon
Based upon data collected from four focus groups, this paper examines life in the Nahr al-Bared, Beddawi, and ‘Ayn al-Hilweh refugee camps in Lebanon from a governance perspective. The authors contend that a lack of legitimate governance structures in the camps has inhibited the improvement of socio-economic and living conditions for the residents and jeopardized the security of Palestinians and Lebanese alike. The authors discuss the history of Palestinian governance in Lebanon, the securitization of the camps, and following Giorgio Agamben, ‘the state of exception’ prevailing within them. Furthermore, the authors posit that, in the near-absence of legitimate government, Islamism and an ‘economy of morals’ has emerged to help ensure the daily functioning of the camps.
The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination
The number of individual RSD applications received by UNHCR offices worldwide nearly doubled from 1997 to 2001, while UNHCR's RSD operations have been criticized for failing to implement basic standards of procedural fairness. Yet, although there is some literature critiquing how UNHCR determines refugee status, there is little literature examining whether UNHCR should do so, and if it should, when, where, and under what conditions. UNHCR performance of RSD poses protection challenges because it is founded on a basic contradiction. On the one hand, government action is essential for effective refugee protection. On the other hand, UNHCR RSD is premised on at least partial government failure. Neither direct concern for protection from non-refoulement nor strict legal obligations completely explain UNHCR's current RSD activities. UNHCR's RSD activities seem best explained by what Goodwin-Gill has called 'negative responsibility', and hence can represent a risky shift of responsibility from governments to the UN. At the same time, in some circumstances UNHCR RSD substantially advances refugee rights. In order to match its actual mandate and resources, UNHCR should perform RSD when it can enhance the protection provided to refugees by governments, but the activity should be more limited and conditional than it is today.