Preventive Action for Refugee Producing Situations

28 Chapter1
nongovernmental agencies, provides international protection and care for
more than 17 million refugees. For many persons, a crisis of displacement
has evolved into a long-term condition. Extended camp life, despite
material assistance and technical support, is unacceptable costly in human,
economic, and political terms. The cost of protection and care in the
current refugee crisis is not, however, the sole motivation in the search for
international preventive measures. Increasing concern about political
destabilization under the current system has inspired various governments
to direct their attention toward preventing situations that generate
refugees, which is a necessary development if preventive actions are to
have any prospect of success. Continuing disagreement, however, over the
means of achieving this without infringing on the national sovereignty of
states is inhibiting real progress. The organization that seems to be in the
best position to help is UNHCR, but it is hindered by an inherent
contradiction between its mandate and the potential scope of preventive
actions, which includes imposing obligations on sovereign states. In
addition, the 1950 Statute of the Office of the UNHCR limits its work to a
humanitarian mandate for refugees. 26 On the other hand, a 1986 General
Assembly resolution calls for addressing the factors that cause refugees as
part of UNHCR's work of searching for durable solutions to the
problem. 27 Moving to remedy such factors could lead UNHCR to
interventive action, which is not permitted under a strictly humanitarian
mandate. In renewing the mandate of UNHCR for five further years in
1987, 28 the General Assembly did not equip the organization with the
authority to address refugee causes; neither did it seem to recognize the
challenge that the organization faces in handling the increasingly
multifaceted problems of today's coerced migratory flows.
Through its network of more than 120 offices around the world,
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26 "The work of the High Commissioner shall be of an entirely non-political
character; it shall be humanitarian and social and shall relate, as a rule, to groups
and categories of refugees." Statute of the Office of the United Nations High
Commissioner for Refugees, Chapter 1, Art. 2, Annex to the GA res. 428 (V),
14 December 1950 (Geneva: United Nations, 1950).
27 "The General Assembly ... recognizes the importance of finding durable
solutions to refugee problems and recognizes also that the search for durable
solutions includes the need to address the causes of movements of refugees and
asylumseekers from their countries of origin..." UN GA res. 41/124,4 December
1986.
28 UN GA res 42/108,7 December 1987.
Introduction 29
many of which are in or near the countries of origin of potential refugee flows,
UNHCR is in a uniquely advantageous position to obtain critical information
on refugee movements. Even though UNHCR obtains comprehensive firsthand
knowledge about potential new refugee flows, the organization has
normally refrained from involving itself in activities connected with
predictions, including taking preventive actions. Only a few exceptions exist,
such as particularly courageous individual UNHCR officials, 29 and the then
Deputy UN High Commissioner, Dale de Haan, in the case of the Orderly
Departure Programme. 30 In practice, predicting refugee flows has entailed
making contingency plans for the predicted situation should it occur, but
remaining passive vis-a-vis the point of origin of the refugees. Prediction
would appear to be less objectionable to sovereign states than preventive
action; the latter presupposes an active effort to avoid potential refugee
situation at the point of origin, which would probably be seen as unwelcome if
not controversial, and as an intervention in its domestic affairs. The mandate of
UNHCR has now been extended far beyond its original scope by the
1969 OAU Convention, the 1984 Cartagena Declaration, and resolutions of the
General Assembly to encompass not only refugees with a. well-founded fear of
persecution but, in specific situations, also returnees and displaced persons
within their homeland, 31 a group of persons who number about
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29 Nicolas Morris was UNHCR Representative in Sudan when he forecast in December
1984 that as many as 300,000 new refugees from Ethiopia could be expected in
eastern Sudan. "This very rare statement, perhaps the first of its sort from UNHCR,
gave rise to protest from Ethiopia. His forecast was also incorporated in an appeal for
additional funds, sent to governments by UNHCR. Morris is quoted by a Dutch
journalist as saying [translation by Leon Gordenker]: "We certainly made a political
declaration, but it was also objective. You surely know that if there is a growing lack
of food in Ethiopia, the people will come here to get something to eat'"See:Leon
Gordenker, Refugees in International Politics (London: Croom Helm, 1987), p. 123.
30 De Haan pursued the establishment of the program with particular vigor. See Kumin,
"Orderly Departure from Vietnam : A Humanitarian Alternative?" Diss., The Fletcher
School of Law and Diplomacy, 1987, p 25.
31 The "displaced persons" category meant initially to deal with new problems such as the
situations of countries divided in fact, if not in law, which included countries split by
civil war, as for example the Sudan and Vietnam before 1975. Whereas the "good
offices" category had made it possible for UNHCR to provide assistance with a prima
facie eligibility, the "displaced persons" came to mean UNHCR action on the ground -
providing humanitarian assitance to those displaced persons within the country
divided by war or insurgency. In the case of Vietnam, this required UNHCR to deal
with three different parties: the North