Preventive Action for Refugee Producing Situations

190 Chapter 4
In the midst of the humanitarian nightmare in former Yugoslavia with
almost 3 million people - refugees, displaced persons and people trapped in the
besieged cities and regions, innocent civilians continue to be victims of terror
and deadly reprisals. The High Commissioner convened on 29 July 1992 an
international ministerial meeting with an objective to obtain support for
concepts to deal with the crisis and for the necessary funding. The summary of
the president states a general endorsement of the High Commissioner's
suggestion for a comprehensive approach evolving around seven key-elements,
including preventive protection to reduce the factors which lead to
displacement. 433 In her message to the meeting of the Humanitarian Issues
Working Group of the London Conference, the High Commissioner urged for
strengthening protection in the region both preventive and temporary. 434 At the
same time, the High Commissioner insisted that the basic principle of nonrefoulement
cannot be compromised. 435
UNHCR's presence in refugees' countries of origin is in principle always of
crucial importance to any prevention and solution-oriented activities. 436
Preventive protection inside countries of origin is increasingly extended so
that people do not feel compelled to cross borders in search of
protection. 437
the background, once a situation became so grave as to be considered a threat to
international peace and security and thus a matter for the political organs of the
United Nations: the Secretary-General and - notably - the Security Council. In the
major political confrontations the High Commissioner ought not to be involved;
then better a Special Representative or some similar agent or agency, who could
take the brunt without jeopardizing the ongoing, humanitarian work," p.245.
433 HCR/IMFY/1992/4,10 August 1992, p. 6.
434 Statement by Mrs. Sadako Ogata United Nations High Commissioner for
Refugees and Chairperson of the Humanitarian Issues Working Group of the
International Conference on former Yugoslavia (Geneva, 9 October 1992).
435 Ibid., p. 2.
436 See A/AC.96/799,25 August 1992, p. 8
437 Ibid., p. 9.
Chapter 5
Legal Justification
5.1. Objections of states against international preventive actions
As this is a thesis in political science and not in international law, this
chapter is limited to a brief summary of possible legal arguments of states
against the proposed international preventive actions, and rebuttals to those
objections. It will not attempt to provide an exhaustive account of
international law on the subject.
The main reason that international and nongovernmental organizations
have limited their involvement in preventive work is that states tend to
perceive early warning and prevention activities as intrusions into their
internal affairs. The rationale that states often use to resist plans for preventive
action is that it may interfere with their own national security and
other domestic matters. We will make it quite clear that our proposed actions
are not intended to infringe on national sovereignty. On the contrary, we
hope that with international assistance, the weaker countries and their people
will be less vulnerable to intervention by larger powers.
5.1.1. National security
Both national 438 and international Iegislation439 for the protection of human
rights and refugees contain restrictions on the grounds of national
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438 Art. 11(2) of the Aliens Law 1965 (Ausländergesetz) of the Federal Republic
of Germany foresees: "Ausländer, die als politisch Verfolgte Asylrecht
genießen, heimatlose Ausländer oder ausländische Flüchtlinge können, wenn
sie [sich] rechtsgemäß im Geltungsbereich dieses Gesetzes aufhalten nur aus
schwerwiegenden Gründen der öffentlichen Sicherheit und Ordnung
ausgewiesen werden." See Goodwin-Gill, The Refugee in International Law,
London: Oxford University Press, 1983, p. 82.
439 Art. 3 of the Declaration on Territorial Asylum, adopted by the General
Assembly in 1967, does not only acknowledge the national security exception,
but also appears to authorize further exceptions in order to safeguard the
population, as in the case of a mass influx of persons. Goodwin-Gill, The
Refugee in International Law, pp. 96-97. The Committee of Ministers of the
Council of Europe, in a resolution of 1967, recognized 'the necessity of
safeguarding national security nd of protecting