DURABLE SOLUTIONS

DR. V. VIJAYAKUMAR
PART – VI
Electives: Refugee Law - 2019
 Foundation in the Convention

 Historical: Between 1922 and 1951, the

basic objective of the developments was
to find permanent (durable) solutions to
the refugee problem in general and the
H.C offices were fully geared to achieve
this by collaborating with the respective
governments as well as the voluntary
agencies
 One among the functions of the first High
Commissioner (Nansen) in 1922 was to
assist the refugees to find permanent
homes and work

 One among the functions of the Director

of Inter-governmental Committee for
Refugees in 1938 was to approach various
governments of countries of refuge and
resettlement with a view to developing
opportunities for permanent settlement
 Again during 1938 with the
establishment of a single H.C’s Office
(London – Sir Robert Emerson) the
functions included the ‘promotion of
resettlement opportunities’

 The General Assembly Resolution of

Feb 12, 1946 indicating three broad
guidelines included that ‘there should
be no forced repatriation’
 Similarly, one among the functions of
the International Refugee
Organization was to resettle about 2
million people who were uprooted
from their countries during the World
War II

 These developments also got

reflected in the legal instruments that
were adopted during this period
 Legal Basis for durable solutions
 For State parties to the CSR 1951 or the CSRP 1967
1.General Assembly Resolution 428 (V) of 14 December
1950:
a. paragraph 2 (d) provides for the role of the High
Commissioner for Refugees to promote the Voluntary
Repatriation
b. Paragraph 2 (e) provides for the promotion of
assimilation of refugees, especially by facilitating their
naturalization
c. Paragraph 2 (g) provides for transfer of refugees’
assets especially those are necessary for their
resettlement
2. Statute of the Office of the UNHCR
a. Article 1 provides for the functions of the H.C that
includes the function of ‘seeking permanent solutions
for the problem of refugees … to facilitate voluntary
repatriation of such refugees, or their assimilation
within new national communities’
b. Article 8 (c) provides for the H.C to assist
governmental and private efforts to promote
‘voluntary repatriation’ or ‘assimilation’ within the new
national communities
c. Article 8 (e) provides for transfer of refugees’ assets
and especially those necessary for their ‘resettlement’
d. Article 9 provides for the High Commissioner to
engage in such additional activities, including
‘repatriation’ and ‘resettlement’, as the General
Assembly may determine, within the limits of the
resources placed at his disposal
3. CSR 1951:
a. Fourth paragraph of the Preamble – ‘considering the
grant of asylum may place unduly heavy burdens on
certain countries and that a satisfactory solution of a
problem of which UN has recognized the international
scope and nature cannot therefore be achieved
without international co-operation’
b. Article 19(2) provides that ‘contracting states shall use
their best endeavours consistent with their laws and
constitutions to secure the ‘settlement’ of such
refugees…’
c. Article 30 (1) and (2) provides for the ‘permission for
transferring the assets of refugees to a country where
he has been admitted for the purpose of ‘resettlement’
4. General Assembly Resolutions
a. UNGA Res. 1166 (XII), 26 Nov 1957
and
b. UNGA Res. 1285 (XIII), 5 Dec 1958

‘reiterated that permanent solutions

should be sought in voluntary
repatriation and assimilation within
new national communities, either
locally in countries of first refuge or
in countries of immigration’
 With reference to the refugees in the
European camps in the 1950s, the
international community
acknowledged that resettlement or
aid with local integration were the
most suitable courses

 In many countries, even after local

assimilation, refugees have moved to
their countries of origin once the
conditions there have changed
(Canada)
 Forms of durable solutions
 From these provisions of International
law arises the following three types of
durable solutions:
a. Voluntary Repatriation;

b. Local Integration (assimilation); and

c. Resettlement (third country)

 VOLUNTARY REPATRIATION
 It is the best of the three forms of durable solutions
(for various reasons and in the interest of the refugees
as well as states)

 As such it is the most preferred solution

 It restores the citizenship of his own country of origin

and puts an end to the pain of exile

 It is also the choice made be refugees when they are

faced with restricted range of options
 Factors facilitating voluntary repatriation

 Conditions in the country of origin

 Human rights observance in the country of origin in

practice as opposed to the fact of being a state party
to a series of international human rights instruments
(Philippines – Sri Lanka though a party to CAT,
voluntary repatriation is likely to suffer a set back
based on the practices as can be seen in Suresh v.
MCI)

 Extent of care guaranteed on their return

 Nature of voluntary repatriation
A. Spontaneous

 Changed conditions in the country of origin

(favourable conditions)

 Non-availability of alternate solutions in the

country of asylum or elsewhere

 No formal agreement is required for such

voluntary repatriation undertaken by the
refugees themselves
B. Organised

 Repatriation agreement (s) between the

countries of origin and asylum (sometimes
it may be between the refugees and their
country of origin – eg. Chakma refugees)

 Repatriation facilitated by international

organizations like the UNHCR or the IOM
and the like
 What prompts voluntary repatriation?

 Information about the assistance given to returnees

and the possibilities of starting a new life again in the
country of origin

 Information about the reforms in the country of origin

 Sense of patriotism (inseparable and real attachment

towards the motherland)

 Optimism over the improving situations in the country

of origin
 Unexpected family news or news about
their friends and relatives in the country of
origin (limited to individual movement and
not the entire refugee group)

 Promises of physical and economic

security in the country of origin given by
external/international agencies like the
UNHCR

 Curiosity to know about the developments

 The possibility of new skills learnt in the
country of asylum being utilized more
profitably in the country of origin

 Feelings of home sickness, basically

arising out of the alien culture in the
country of asylum

 Intolerable life in the country of asylum

(the Chakmas in India as seen by the
SAARDAC by limiting the assistance
extended to the refugees that compel
them to return to their country of origin)
 Fear of forced repatriation by country
of asylum to country of origin in the
guise of voluntary repatriation or
under the pressure of state as well as
the non-state actors in the country of
asylum (both the parties and non-
parties to the CSR 1951 or the CSRP
1967) – need for some external
agency to check voluntariness for
repatriation in the country of asylum
 Expectations of repatriating refugees

 Information regarding employment

opportunities in their country of origin

 Information regarding their physical security

 Access to financial and other material resources

 Travel arrangements back to their country of

origin with or without external agencies like
UNHCR or the IOM or asylum state
 Things to be done prior to repatriation
All these and many more to be done by the
country of asylum, with the involvement of
NGOs (local or international) as well as
international agencies like UNHCR, IOM …
 Identify families and individual refugees who

might require special assistance

 Identify professionally skilled refugees like

doctors, health workers and the like for
building health services network for
reintegration
 Counseling refugees who might require such
attention after identifying the social and
emotional problems

 Providing necessary information prior to

departure relating to the problems the refugees
might face on their return like employment,
housing, training, education, medical and other
facilities

 Co-ordination and co-operation between and

among states, NGOs and agencies of U.N
 In cases of mass exoduses, voluntary
repatriation has several other facets
on which the states or international
agencies may not have any control –
the Afghan refugees right to return to
their own land from Pakistan [Articles
9 and 13(2) of UDHR; Article 5 of
CEAFRD; Article 12 of ICCPR] – the
Bengali refugees from India – the
Lhotsampa refugees from Nepal and
India (human rights dimension)
 LOCAL INTEGRATION
 Alternate solution if voluntary repatriation is not in
sight or simply not available

 H.C’s mandate refers to it as ‘Assimilation in new

national communities’

 Need for providing counseling, education and training

(both language and skills) to assist refugees adapt and
then integrate with local population

 If the asylum state legally or otherwise provides this

facility, then plans for programmes of material
assistance should be in place for such local integration
(role of local NGOs)
 Such programmes of assistance in the
country of asylum should not make them
dependents and efforts should be taken to
make them self reliant – all programmes
should be with this objective – duration of
assistance must be clearly defined

 May result in granting of citizenship by the

asylum state depending upon the laws
and its ability to absorb them-maintaining
links with state of origin–dual citizenship
 FACTORS FOR LOCAL NTEGRATION
 Language

 Culture

 Climatic conditions

 Receptive nature of local populace

 Generation of employment opportunities and utilizing

the refugee population for that purpose (laying rail
roads in Canada and the U.S)
Refugees may not accept local integration
because of
 Settled in rural areas/’urban’ on conditions

 Continued hope of repatriation

 Continued hope for resettlement in a country

of his / her choice

 Linguistic and cultural barriers in the country

of asylum

 Dependency syndrome
 In 1996, the Mexican government offered
local integration opportunities to
Guatemalan refugees (one among the
largest L.I)

 Canadian practices for local integration –

including groups like Tibetans – rules and
regulations under IRPA 2002

 American practices for local integration of

refugees – rules and regulations – Still the
largest country to offer refugee protection
even after September 11, 2001
 RESETTLEMENT
 Refers to permanent settlement in a third
country

 Such decision to resettle is taken only after the

failure or non-availability of the other two
durable solutions

 Again such decision to resettle is always taken

by consulting not only the refugees but also the
respective countries that provide resettlement
opportunities – some of the U.N agencies may
be involved in this process, like UNHCR
It may be necessary to work on resettlement
solution only for the following reasons: For
humanitarian protection, particularly the
vulnerable groups
 Victims of torture

 Protracted refugee situations

 Political reasons including security reasons

 Family reunification
 Issues of resettlement

 Double determination

 Resettlement or refugee shopping?

 Denial of choice of the country for

resettlement opportunities

 Secondary role of UNHCR - dubious

 CONCLUDING REMARKS
 Durable solutions and temporary protection

 Durable solutions and protracted refugee situations

 Durable solutions and termination/ cessation of

refugee status

 Durable solutions and burden sharing

 Durable solutions and role of UNHCR, IOM, ICRC and

NGOs