Although UNHCR remains the bulwark agent of protection for refugees, protection ultimately remains the responsibility of the individual States and the international community, which have legal obligations as well as political discretion to protect refugees. The international community's ability to protect refugees operates on several levels. Individual States must undertake the protection of refugees in accordance with their obligations under international human rights and humanitarian law. For those States that are signatories, further obligations also arise under the 1951 Convention,64 although fundamental protection measures therein, such as the proscription of refoulement have arguably risen to the status of customary international law by which all States are bound. In meeting these obligations, States also permit UNHCR to carry out its task with integrity. The internationalcommunity further protects refugees through international organs such as the U.N. system, including UNHCR and United Nations Development Programme (UNDP), and others such as the International Committee of the Red Cross (ICRC), International Organization for Migration (IOM) and OSCE. Finally, the international community must protect refugees by providing the financial means through which protection measures by international organizations, or even by other less affluent States, can be effected. This erosion of financial support for refugee emergencies may be part of the rationale for UNHCR's restructuring under the Delphi Plan of Action which may negatively impact the agency's ability to carry out its primary mandate to protect refugees.
Since the 1980s, there has been a dramatic retrenchment in the world's willingness to harbor and protect refugees. Several developments in the past decade have been particularly disturbing. Refoulement and inadequate asylum processing continue to be problems in many States including those of the former Soviet Union.65 Traditional resettlement States are much less willing to accept refugees. Many of these same governments, in western Europe in particular, have taken measures that all but guarantee that asylum seekers will not even have the opportunity to make their claims for refugee status in those countries. Human Rights Watch is concerned that the use of safe country lists may prevent asylum seekers from being able to raise their asylum claims where, for example, supposed safe countries of asylum do not have status determination procedures. Only years after it had been lodging protests against the "push-offs" and forced repatriation of Vietnamese boat people, the United States has itself interdicted and refouled asylum seekers from Haiti and Cuba.66 UNHCR protested these violations of international law, but was unable to remedy such transgressions. In other settings, however, UNHCR itself has worked in conjunction with States to fashion questionable protection measures that come dangerously close to accommodating rather than challenging this global deterioration of refugee protection. Human Rights Watch is concerned that several of these measures permit States to fall short of their protection obligations and, further, put UNHCR in a position where it too will fail in its mission to protect refugees. Where States persist in their abuse of refugees or otherwise impede UNHCR's and relief organizations' efforts to aid and protect refugees, Human Rights Watch calls for the international community to take the necessary steps to encourage such States to cease practices abusive of refugees. In requesting such assistance, UNHCR should consider further use of ad hoc committees as contemplated by the Executive Committee,67 as well as other channels within the U.N. system.
Another disturbing development is preventive protection. This construct, developed largely in response to western Europe's unwillingness to take in refugees from the conflict in the former Yugoslavia, seeks to have UNHCR, together with IOs and NGOs, engage in human rights monitoring and protection in refugee producing areas, which UNHCR describes as "activities both to attenuate the causes of departure and to reduce or contain cross-border movements or internal displacements."68 Human Rights Watch encourages UNHCR's efforts to monitor and to makeinterventions in human rights abuses. However, the emphasis in such activities on preventing cross-border movement may arguably be antithetical to the international community's and UNHCR's obligations to enable refugees to exercise their fundamental right to seek asylum, despite UNHCR's efforts to ensure that refugees will maintain that right in preventive protection settings. Indeed, the experiences of UNHCR in implementing preventive protection in the former Yugoslavia illustrate the dangers inherent to maintaining the precarious balance between often conflicting obligations. For example, after earlier hesitance to take all measures possible to evacuate ethnic minorities in United Nations Protected Areas (UNPAs) in the former Yugoslavia, UNHCR was helpless to protect refugees when many were forcibly expelled, with many men and boys detained in concentration camps or massacred.69 This dilemma was brought on in large part by the international community's lack of political will to maintain the integrity of the UNPAs. However, the fall of the UNPAs, while an isolated case of the failure of preventive protection, underscored the risks inherent in preventive protection and laid bare the possibility of conflict between goals underlying preventive protection and the fundamental right to seek asylum.
UNHCR has also fashioned the concept of temporary protection to encourage States that are unwilling to grant asylum to large groups until situations in the country of origin should have stabilized enough for a safe return.70 Temporary protection was used extensively for people fleeing from the former Yugoslavia, even though the vast majority of such persons ought to have been considered refugees under the 1951 Convention. Among other disadvantages, refugees accepted under temporary protection are not accorded the rights refugees enjoy under the 1951 Convention. Now, after the Dayton Accords and the elections in Bosnia, States that served as temporary havens for Bosnian displaced persons are eager to unload these same people, revealing a fundamental problem in this arrangement: who will determine when conditions are sufficiently safe to return? Furthermore, will there be adequate measures to ensure that individuals will still have an opportunity to raise their refugee claims? Temporary protection also heightens the importance of UNHCR's written position on conditions of return. Even moderately optimistic descriptions of the political situation in the country of origin may be seized upon by temporary receiving States as an excuse to relieve themselves of their refugee burden, as was the case with the recent reference to a UNHCR Repatriation Information Report by a German court hearing the claims of a Bosnian asylum-seeker. UNHCR should consider including in future assessments of the conditions in the country of origin a disclaimer notice that such documents should not be considered alone in evaluating asylum claims.
Meantime, in several instances including current refugee crises, States have refused UNHCR critical access to refugees and returnees in their jurisdiction and have otherwise blocked the ability of relief organizations to provide assistance to asylum seekers on their soil. Many of these States are not yet parties to the 1951 Convention, which further hampers attempts to alter their behavior. Ironically, some of the States that have been among the worst in their treatment of refugees and have failed to sign the 1951 Convention, nevertheless sit on the Executive Committee of UNHCR. Human Rights Watch urges that at the least, all States who are members of the Executive Committee, tasked with discussing UNHCR's policies on durable solutions, demonstrate their interest in the welfare of refugees by signing the 1951 Convention.
64 Additional obligations derive also from the Organization of African Unity's Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted by the OAU in 1969.
65 See Human Rights Watch/Helsinki, "The Commonwealth of Independent States: Refugees and Internally Displaced Persons in Armenia, Azerbaijan, Georgia, the Russian Federation and Tajikistan," A Human Rights Watch Short Report, vol. 8, no. 7, May 1996; Human Rights Watch/Helsinki, "Crime or Simply Punishment?: Racist Attacks by Moscow Law Enforcement," A Human Rights Watch Short Report, vol. 7, no. 12, September 1995; Human Rights Watch/Helsinki, "Swedish Asylum Policy in Global Human Rights Perspective," A Human Rights Watch Short Report, vol. 8, no. 14, September 1996.
66 Human Rights Watch/Americas, "No Port in a Storm: The Misguided Use of In-Country Refugee Processing in Haiti," A Human Rights Watch Short Report, vol. 5, no. 8, September 1993; Human Rights Watch/Americas, "Cuba: Repression, the Exodus of August 1994 and the U.S. Response," A Human Rights Watch Short Report, vol. 6, no. 12, October 1994, pp. 6-7; Human Rights Watch/Americas, "Cuba: Improvements Without Reform," A Human Rights Watch Short Report, vol. 7, no. 19, October 1995, pp. 28-31.
67 Executive Committee Conclusion 40(I) (XXXVI).
68 Diane Paul, "The Protection of Civilians in Bosnia and Hercegovina: A Case Study," a forthcoming report for the Center for the Study of Societies in Crisis, quoting Ms. Sadako Ogata as cited in Bill Frelick, "Preventing Refugee Flows:Prevention or Peril?," 1993 World Refugee Report, U.S. Committee for Refugees (Washington: 1993).
69 Diane Paul, "The Protection of Civilians in Bosnia and Hercegovina: A Case Study," a forthcoming report for the Center for the Study of Societies in Crisis.
70 United Nations High Commissioner for Refugees, The State of the World's Refugees: In Search of Solutions (Geneva: 1995), pp. 85-86.