The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination |
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| Authors: | Kagan Michael |
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| Institution: | * Revised May 2004 and December 2005. This article stems in large part from my experience working to develop refugee legal aid and advocacy programs in Egypt and Lebanon from 2001 through 2003. For this opportunity, I am especially grateful to Samira Trad for her courage and determination, and to Liza Hazelton and Prof. Barbara Harrell-Bond for their wisdom and collaboration. The work and research which led to this article was funded by the Initiative for Public Interest Law at Yale, the Clara Belfield & Henry Bates Overseas Travel Fellowship at the University of Michigan Law School, and the American University in Cairo Forced Migration and Refugee Studies Program. Michael Alexander and Prof. James C. Hathaway provided useful comments on earlier drafts. The views expressed here are solely my own. |
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| Abstract: | The number of individual RSD applications received by UNHCRoffices worldwide nearly doubled from 1997 to 2001, while UNHCR'sRSD operations have been criticized for failing to implementbasic standards of procedural fairness. Yet, although thereis some literature critiquing how UNHCR determines refugee status,there is little literature examining whether UNHCR should doso, and if it should, when, where, and under what conditions. UNHCR performance of RSD poses protection challenges becauseit is founded on a basic contradiction. On the one hand, governmentaction is essential for effective refugee protection. On theother hand, UNHCR RSD is premised on at least partial governmentfailure. Neither direct concern for protection from non-refoulement norstrict legal obligations completely explain UNHCR's currentRSD activities. UNHCR's RSD activities seem best explained bywhat Goodwin-Gill has called ‘negative responsibility’,and hence can represent a risky shift of responsibility fromgovernments to the UN. At the same time, in some circumstancesUNHCR RSD substantially advances refugee rights. In order to match its actual mandate and resources, UNHCR shouldperform RSD when it can enhance the protection provided to refugeesby governments, but the activity should be more limited andconditional than it is today. |
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