Forced to flee and forced to repatriate? How the cessation clause of article 1C(5) and (6) of the 1951 Refugee Convention operates in international law and practice.

• Author: Cwik, Marissa Elizabeth

ABSTRACT

The purpose of refugee law is to provide international protection for vulnerable people who are denied state protection. In fulfilling this purpose, the United Nations High Commissioner for Refugees (UNHCR) and asylum states have different legal foundations and implementing materials. When terminating refugee status and protection under the 1951 Refugee Convention Relating to the Status of Refugees, the obligations and legal authorities of UNHCR and asylum states differ. The UNHCR implementing statute allows the facilitation of voluntary repatriation when refugees can return in safety and with dignity. In contrast, host states are able to mandate repatriation when a change in circumstances occurs in the country of origin. The different evidentiary thresholds for voluntary and mandated repatriation have created deep confusion regarding states" ability to end refugee status and the UNHCR's role in facilitating returns. This Note proposes placing voluntary and mandated repatriation on a timeline contingent on developments in the country of origin. Using the current displacement of Rwandan refugees from Uganda as a case study, this Note reconciles the conflicting standards in. international law through this timeline.

TABLE OF CONTENTS I. INTRODUCTION II. 1951 REFUGEE CONVENTION AND THE AUTHORITY OF UNHCR III. THE 1951 REFUGEE CONVENTION CESSATION CLAUSE IV. UNHCR'S STATUTORY REQUIREMENT TO FACILITATE VOLUNTARY REPATRIATION A. Ending UNHCR Protection: Voluntary Repatriation as a Durable Solution B. UNHCR Guidelines for Promoting Voluntary Repatriation V. MANDATED REPATRIATION A. UNHCR Guidelines for Declaring Cessation Under the 1951 Refugee Convention B. State Practice Under the Ceased Circumstances Provision C. The "Compelling Reasons" Exception to Mandatory Repatriation VI. HARMONIZING MANDATORY REPATRIATION WITH UNHCR'S PRINCIPLE OF VOLUNTARY REPATRIATION VII. RWANDAN REFUGEES IN UGANDA A. Background of Rwandan Refugees in Uganda B. Comparing UNHCR Promotion of Voluntary Repatriation of Rwandan Refugees with UNHCR Guidelines C. Evaluating Uganda's Actions Under UNHCR Guidelines and the Precedent of State Practice 1. Fundamental Change 2. Durable Change 3. Effective Protection D. Recommended Action VIII. CONCLUSION I. INTRODUCTION

The United Nations High Commissioner for Refugees (UNHCR) estimates that ten million refugees exist worldwide. (1) Eighty percent reside in developing countries. (2) Over half of all refugees are considered to be "protracted"--the conflict that caused them to flee their home country has remained unresolved for five or more years. (3) International protection substitutes for national protection as long as refugee status is maintained. (4)

The legal authority for international protection is located in three foundational documents. States' legal obligations are found in the 1951 Refugee Convention Relating to the Status of Refugees (1951 Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees (1967 Protocol). These instruments require state parties to grant refugees rights and provide additional safeguards regarding assets, travel, and employment, among others. (5) The third foundational instrument is the UNHCR statute. In conjunction with states' legal obligations, UNHCR is tasked with providing international protection to refugees and supervising host-state responsibilities. (6)

These different legal authorities place affirmative obligations on host states and UNHCR that overlap harmoniously, with the notable exception of the cessation of international protection. The UNHCR statute and the 1951 Refugee Convention divide into two distinct structures when governing cessation of refugee status. Under its statute, UNHCR may effect voluntary repatriation, on both an individual and group basis. (7) First, individual refugees can voluntarily cease protection under the 1951 Refugee Convention by taking affirmative steps to reacquire their nationality or a new nationality, re-availing themselves of the protection of their home country, or reestablishing themselves in the country that they left. (8) Second, if UNHCR determines that refugees can return "in safety and with dignity," UNHCR may actively promote voluntary repatriation programs to large groups of refugees, eventually ending UNHCR protection. (9)

In contrast, asylum states can revoke international protection by activating a cessation clause. Article 1C(5) and (6) of the 1951 Refugee Convention allows states to cease refugee status when a change in circumstances takes place in the country of origin that ends the fear of persecution causing flight. (10) State cessation of refugee status is termed "mandated repatriation." This option is not well developed in international practice. (11) UNHCR has set forth recommended criteria states can use for evaluating whether fundamental change has occurred. (12) However, UNHCR's interpretations of the 1951 Refugee Convention obligations, while authoritative, are not binding on states. (13) As this Note demonstrates, the legal requirements states must satisfy to mandate repatriation under the 1951 Refugee Convention are not clear, and confusion exists at the intersection of voluntary and mandated repatriation.

Even when UNHCR begins coordinating voluntary repatriation with a specified group of refugees, host-state obligations under the 1951 Refugee Convention may continue because the evidentiary requirements to mandate repatriation may be higher than the requirements necessary to support voluntary repatriation. (14) When host states mandate repatriation under the authority of the 1951 Refugee Convention, this action can clash with UNHCR's statutory obligation to implement voluntary repatriation and place UNHCR or host states in danger of violating international law.

This Note harmonizes voluntary repatriation and mandatory repatriation by placing these options on a continuum, dependent upon positive developments in the country of origin and an end of the fear of persecution that caused flight. Reading UNHCR interpretations and recommendations in the aggregate, UNHCR creates a linear progression of steps toward cessation of refugee status. By placing UNHCR interpretive guidelines on a timeline, voluntary repatriation becomes a necessary, but not sufficient condition in the progression toward mandatory repatriation, instead of operating as a competing and distinct option. Part I presents the background the 1951 Refugee Convention and UNHCR's role in refugee protection. Part II outlines the 1951 Refugee Convention cessation clause. Part III sets forth UNHCR's statutory obligation to support voluntary repatriation. Part IV details the cessation of international protection under the 1951 Refugee Convention, examining the authority of states to mandate repatriation and the guidelines UNHCR sets forth for this determination. Syncing voluntary and mandated repatriation measured against progress in the country of origin, Part V recommends that UNHCR articulate this timeline as its interpretation of the 1951 Refugee Convention and actively promote state adherence. Part VI applies this analysis to the current situation of Rwandan refugees living in Uganda and Uganda's invocation of mandated repatriation.

2. 1951 REFUGEE CONVENTION AND THE AUTHORITY OF UNHCR

   The 1951 Refugee Convention categorized two types of refugees: Article 1A(1) refers to people classified as refugees pre-1939; Article 1A(2) refers to those who have a well-founded fear of being persecuted "due to race, religion, membership of a particular social group or political opinion" and because of this fear cannot avail themselves of the protection of their country of origin. (15) The 1951 Refugee Convention retroactively applied to refugees granted status under the League of Nations and replaced the authority of the instruments that originally granted that status. (16) The 1967 Protocol removed the temporal limitations in the 1951 Refugee Convention, thereby preserving the continual authority of the 1951 Refugee Convention. (17)

   The 1951 Refugee Convention granted UNHCR the statutory authority to declare refugee status and facilitate asylum. (18) A grant of refugee status triggers UNHCR's responsibilities, first, to allocate resources to alleviate the immediate crisis, and second, to seek a permanent solution for refugees. (19) Articulated in Article 35, UNHCR's role in this process is supervisory, and necessarily dependent on host-state cooperation: (20)

   The contracting States undertake to co-operate with the office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this convention. (21) "Supervision," as envisioned and enacted by UNHCR, encompasses a range of activities, including protection efforts, daily field activities, overseeing state action, organizing aid, and monitoring nongovernmental organization (NGO) work. (22) Article 35 is thus UNHCR's legal authority in requesting states to accept UNHCR's role in protection, provide UNHCR with information, and adhere to UNHCR policy statements. (23)

   UNHCR's work in host countries is multifaceted. When a refugee crisis first arises, UNHCR supervises the application of international conventions, (24) and coordinates the admission of refugees and the transfer of refugee assets to host countries. (25) For the duration of convention protection, UNHCR works to improve the general situation of refugees and meet their material needs. (26) Article 35 expands state cooperation to all these functions of the High Commissioner, not just treaty cooperation. (27) As Walter Kalin states:

   By establishing a duty on States Parties to cooperate with UNHCR in the exercise of its functions, Article 35(1) of the 1951 Refugee Convention does not refer to a specific and limited set of...