The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination

Abstract

The number of individual RSD applications received by UNHCR offices worldwide nearly doubled from 1997 to 2001, while UNHCR's RSD operations have been criticized for failing to implement basic standards of procedural fairness. Yet, although there is some literature critiquing how UNHCR determines refugee status, there is little literature examining whether UNHCR should do so, and if it should, when, where, and under what conditions. UNHCR performance of RSD poses protection challenges because it is founded on a basic contradiction. On the one hand, government action is essential for effective refugee protection. On the other hand, UNHCR RSD is premised on at least partial government failure. Neither direct concern for protection from non-refoulement nor strict legal obligations completely explain UNHCR's current RSD activities. UNHCR's RSD activities seem best explained by what Goodwin-Gill has called ‘negative responsibility’, and hence can represent a risky shift of responsibility from governments to the UN. At the same time, in some circumstances UNHCR RSD substantially advances refugee rights. In order to match its actual mandate and resources, UNHCR should perform RSD when it can enhance the protection provided to refugees by governments, but the activity should be more limited and conditional than it is today.

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