Preventive Action for Refugee Producing Situations

22 Chapter 1
the consequences instead of the fighting forces. Such conflicts can be
exploited to support, for example, a governmental decision to relocate
whole segments of its population from one area of the country to another,
or to justify new policies. Even without the pretext of protecting national
security or territorial integrity, governments have engaged in severe abuses
of the human rights of their citizens, making flight the only escape or hope
for survival.
In situations of massive population flows, the individual determination
of refugee status by the Office of the United Nations High Commissioner
for Refugees (UNHCR) has become difficult and impractical; it is replaced
by recognizing new arrivals prima facie as persons of concern to UNHCR.
A large majority of refugees seeking shelter from general armed violence
and war rather than from individual persecution are often called
"humanitarian refugees". This category often remains unprotected under
codified international law as they usually do not qualify for Convention
refugee status. 4 Refugees have been defined according to the following
instruments, which spell out the scope of the mandate of the Office of the
United Nations High Commissioner for Refugees and define the term
"refugee": The Statute of the Office of the United Nations High
Commissioner for Refugees, 5 the Convention Relating to the Status of
Refugees of 28 July 1951 [hereinafter 1951 UN Convention], 6 the Protocol
Relating to the Status of Refugees of 31 January 1967, 7 the OAU
Convention of 10 September
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4 See Kay Hailbronner, "Non-Refoulement and Humanitarian Refugees: Customary
International Law or Wishful Thinking?" Virginia Journal of International Law,
26, No. 4 (1986), p. 857.
5 Chapter II A defines as a refugee: i) Any person who has been considered a
refugee under the Arrangements of 12 May 1926 and of 30 June or under the
Convention of 28 October 1933 and 10 February 1938, the Protocol of 14
September 1939 or the Constitution of the International Refugee Organization,
ii) Any person who, as a result of events occurring before 1 January 1951 and
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality or political opinion, is outside the country of his nationality..."
6 The 1951 UN Convention defined refugees in its Article 1 according to four
characteristics: (1) They are outside their country of origin; (2) they are unable or
unwilling to avail themselves of the protection of that country, or to return there;
(3) such inability or unwillingness is attributable to a well-founded fear of being
persecuted; and (4) the persecution feared is based on reasons of race, religion,
nationality, membership or a particular social group, or political opinion. See
Guy S. Goodwill-Gill, The Refugee in International Law (Oxford: Oxford
University Press, 1983), p. 13.
7 Given its various limitations, the 1951 UN Convention definition only covered
Introduction 23
1969 governing the specific aspects of refugee problems in Africa
[hereinafter referred to as 1969 OAU Convention], 8 and the Declaration
of Cartagena of 1984. 9 Many of the refugees who are currently crossing
international borders do not satisfy requirements for refugee status under
the 1951 UN Convention. Therefore, the term "refugee" is used here in a
broad sense, to include not only those falling into the categories defined
in these instruments but also those involuntarily uprooted from their
homes. Our definition of "refugee" includes all forced movements across
borders (excluding victims of natural disasters) and other displaced
persons having suffered massive human rights abuses by government or
other forces, who are unable to rely on the protection of their
governments, and who for not falling under existing legal categories,
cannot be adequately protected by any existing body. Bodies for
responding to refugee situations have been in existence since 1921,
beginning with the League of Nations High Commissioner for Refugees.
Institutions such as the Nansen Office and the International Refugee
Organization are predecessors of the current Offices of the U.N. Relief
and Work Agency for Palestinian Refugees in the Near East and of the
refugees produced before the event of 1951. Many states relied upon
Recommendation E of the Final Act of the Conference of Plenipotentiaries
that states should apply the Convention beyond its contractual scope to
other refugees within the territory in the case of refugees produced by
events after 1 January 1951. The 1967 Protocol expressly removed the
temporal limitation. Sec Goodwin-Gill, 1983, ibid., p. 13.
8 The OAU Convention of 1969 covers persons who, "owing to external
agression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his country...".
9 The Cartagena Declaration of 1984 acknowledges UNHCR's competence
in Central America. It was the first step to fill the gap between the Central
American reality and the applicability of existing refugee instruments.
Although it was adopted unanimously, it is not a formally binding legal
instrument, but rather indicates the political will of the member states to
follow certain practices. In addition to the provisions in the 1951
Convention and the 1967 Protocol, the Cartagena Declaration is to cover
"persons who have fled their country because their lives, safety or freedom
have been threatened by generalized violence, foreign aggression, internal
conflicts, massive violations of human rights or other circumstances which
have seriously disturbed public order." "Asylum and Protection in Latin
America: the Cartagena Declaration of 1984," Dossier, Refugees (Geneva:
UNHCR, October 1987), p. 32.