Of particular relevance to a research stream focusing on non-signatory States is, perhaps, the literature highlighting how the spread of norms usually involves processes of socialization and internalization. Of specific interest to international refugee law, this theory counters State-centric accounts of these processes by introducing a different set of actors, fora, and transactions, allowing us, for example, to capture actors as fundamentally different from one another as UNHCR, State diplomats, local non-governmental organizations NGOs , legal aid providers, domestic courts, and universities.
The socialization approach may thus provide explanation not only to the question of why States ratify or do not ratify the Convention, but also to issues relating to how the Convention influences non-signatory States and, vice versa, how non-signatory States influence international refugee law.
More precisely, it allows us to ask questions such as: what are the social mechanisms that help make the Convention matter in non-signatory States? Following Koh, norms are internalized in microprocesses of social influence, 14 and understanding these microprocesses, the article argues, is crucial to properly understanding the function of international refugee law.
The remainder of the article highlights key issues and questions that are particularly apt for an analysis drawing on these approaches. The limitation to Europe was removed during a highly politicized plenary session of the Third Committee of the General Assembly and, at the Conference of Plenipotentiaries, a voluntary geographic limitation was developed in its final form.
This twofold and overlapping bias — a general bias against States in the global South, enforced by a disregard of non-signatory States, most of them situated in the global South — is not limited to the formation of the Convention, but is evident also in the evolution of international refugee law more generally. This article argues that this environment risks nurturing broad observations about the role of international refugee law in non-signatory States.
Recent scholarship has sought to redress this historical elision, with newer mainstream literature on international refugee law making a commendable effort to be truly global in scope.
The remainder of the article is thus concerned with highlighting the relationship between non-signatory States and the Convention. UNHCR believes that it is necessary to broaden the base of State support for these refugee instruments, ensuring that the protection provided to refugees is more universal in scope and the burdens and responsibilities of governments are equitably distributed and consistently applied. Accession to the Convention and establishment of a national legal framework would provide a clearer basis for the Government of Guyana to provide refugees with international protection and a mechanism that enables the appropriate engagement of relevant international organizations like UNHCR.
Sometimes, however, the arguments put forward by UNHCR encouraging State accession are more context-specific, as in the case of Bangladesh, where it is argued that accession would:. New accessions are few and far between. In the first 10 years of the Convention, 27 State ratifications were made; since , however, only two States — Nauru 43 and recently independent South Sudan 44 — have acceded to the Convention.
In this respect, it would be of interest to explore more closely the cases where State accession to the Convention appeared to be on the horizon, but circumstances nonetheless caused States to backtrack on their intention to accede.
The national process in Indonesia is also noteworthy in this regard. Indonesia has not yet acceded to the Convention. Arguably, much can be learned about the non- workings of the Convention by closer examination of cases such as Indonesia, Mongolia, and Lebanon.
Also of interest is the role played by the wide range of transnational and local actors — additional to UNHCR — engaged in these processes. In other cases, local actors have been prominent in pushing towards accession.
The Indian National Human Rights Commission, for example, has repeatedly advocated for Indian accession and for the government to enact national refugee protection legislation. Why are non-signatory States unwilling to accede to the Convention? Some regionally specific observations have been made in regard to States in the Middle East, Southeast Asia, and South Asia, but, in general, little is known about the precise explanations — and seemingly evolving positions — as to why individual States are unwilling to accede to the Convention.
In the context of the Middle East, a common explanation for the lack of accession to the Convention is that Arab States do not wish to offer permanent residence, despite their willingness to host large numbers of refugees. As Janmyr and Stevens have noted, 54 however, many Arab States participated in drafting the Bangkok Principles on the Status and Treatment of Refugees, 55 which contains similar principles to those of the international instruments on refugees. Davies has argued that limited Southeast Asian involvement in the drafting of international refugee law has led Asian States to reject the Convention as it is perceived to promote Eurocentric refugee recognition practices.
South Asian governments maintain that their reluctance to accede to the Convention stems from the fact that it does not cater to situations of mass influx or to mixed flows of migrants, both of which characterize forced population flows in this region. In addition, they claim that the Convention represents an imbalance between the rights and obligations of source and receiving countries, and that the principle of international burden sharing is inadequately institutionalized within the regime.
While arguments such as these have important explanatory merit, nonetheless a closer examination is needed of the particular circumstances of each South Asian non-signatory State — at a particular moment in time but also over time — and the processes and discussions that are had at the local level. Different junctures of history may experience various, complex, and intertwined forces favouring — or objecting to — accession.
As will be seen below in section 4. Global developments in the decades following the conclusion of the Convention indicate the complexity of this question. With regard to Western Europe, for example, Aleinikoff noted on the occasion of the 40th anniversary of the Convention in that:. Yet Western Europe now appears among the least committed of the regions to the original humanitarian underpinnings of the Convention.
This is evidenced by the restrictive interpretations of controlling legal norms adopted by government actors, the implementation of harsh deterrent measures visa policies, carrier fines, detention , and reduced financial support for international refugee aid programmes.
He is not alone in pointing to this paradox. Of interest here is a comparison — albeit small in scale — carried out by Coddington in a study of refugee protection in the United Kingdom UK a signatory State and Thailand a non-signatory State. Of course, any such comparative study of refugee protection would need to take as a benchmark not only the protection norms set out in the Convention, but also other forms of protection that currently lie outside the realm of the Convention.
International refugee law is present in non-signatory States in a number of different ways. Perhaps most importantly, for decades UNHCR has had a field presence in many non-signatory States, engaging in both international protection and direct assistance to refugees and asylum seekers. UNHCR has been present in Lebanon and Pakistan, for example, since and respectively, while its relationship with Bangladesh dates back to the Bangladeshi war of liberation.
Importantly, the practice also lays bare the preference of many non-signatory States to negotiate the protection of specific groups of refugees rather than to adopt a single systematic and impartial approach.
One form of cooperation between UNHCR and non-signatory host States, often overlooked in the scholarship, is the bilateral Memorandum of Understanding MoU that in many cases constitutes the basis of collaboration in non-signatory States.
On other occasions, the substantive content of the agreements may bind the host State in observing norms and principles well beyond anything that could be derived from customary international law or even the Convention itself. Sometimes, however, these agreements are far from benign and may even be a protection concern in themselves. The three examples above indicate that the varying content of these MoUs warrants closer, comparative attention by international refugee law scholars in order to understand more precisely how — and which — refugee protection norms are diffused in these contexts.
This, in turn, arguably plays an important role in influencing the ways in which national and local actors reason and converse within the international refugee law paradigm. As noted in section 3. In a similar manner, international refugee law influences the decisions of some non-signatory States regarding who is to be considered a refugee. UNHCR and local and regional civil society organizations also engage as norm entrepreneurs on refugee protection by mobilizing — and sometimes actively participating in — domestic legal reform.
Domestic courts in non-signatory States also occasionally engage with international refugee law norms and principles. In sum, non-signatory States are continually being socialized — to various extents and in various forms — to the norms and principles embedded within the Convention, and these processes need to be studied more closely. As the next part discusses, however, these socialization processes, as well as taking place in national fora, also occur in a wide range of global fora, where non-signatory States participate in important decisions that have a direct bearing on the evolution and interpretation of international refugee law.
Through their participation in key global fora on refugee protection, non-signatory States are not only themselves socialized, but they also participate as norm entrepreneurs in developing the meaning of key concepts of international refugee law. Lebanon joined in , Pakistan in , and Bangladesh and India both joined in In , for example, Lebanon, Jordan, Bangladesh, Thailand, India, and Pakistan participated as members; Thailand sent a total of 27 delegates and Pakistan As such, by participating as members in this forum, non-signatory States are jointly responsible for the repeated calls for States that are not yet parties to accede to the Convention.
They also actively contribute to developing the substance of refugee law by drafting the annual conclusions that interpret the Convention. While the Executive Committee conclusions, adopted in plenary by consensus, are not formally binding, they may nevertheless be highly relevant by expressing an international consensus — and as evidence of opinio juris — on legal issues concerning refugees.
This is particularly the case as participation in meetings of the Executive Committee is not limited to, and typically exceeds, its membership. The specialist knowledge of the Committee and the fact that its decisions are taken by consensus add further weight to its Conclusions. Additionally, in , the Executive Committee established a Standing Committee which examines thematic issues in periodic meetings, reviews UNHCR activities and programmes in the different regions, and adopts appropriate decisions and conclusions on issues included by the plenary.
Taken together, the Executive Committee plenary sessions and the Standing Committee meetings constitute a formal space where non-signatory States are not only socialized into the legal norms and principles embedded within the Convention, but also have an opportunity to actively influence the development of international refugee law. While this article focuses on those of a global character, it is worth noting that a number of regional initiatives pertaining to refugee protection also create important links to the Convention.
UNHCR organized Ministerial Meetings on the occasions of the 50th and the 60th anniversaries of the Convention in and respectively. Reaffirm[ed] that the Convention relating to the Status of Refugees and its Protocol are the foundation of the international refugee protection regime and have enduring value and relevance in the twenty-first century.
More recently, non-signatory States have participated: first, in the negotiations leading to the adoption by the General Assembly of the New York Declaration for Refugees and Migrants — which set out the principles that would guide the global response to refugee displacement; secondly, in the General Assembly negotiations leading to the adoption of the Global Compact on Refugees GCR in December ; and thirdly, in the first Global Refugee Forum in late , where pledges were made to put the GCR into action.
Of these processes, perhaps most noteworthy is the GCR. In the General Assembly, States — many of them non-signatory States — voted in favour of adoption. At the session of the Executive Committee, for example, several non-signatory States not only reiterated key refugee protection principles, but explicitly referred to the objectives of the GCR. This blurring of roles happens in the study of other fields also, for example, in the case of States that have opted out of certain European Union EU legislation or that are not EU Members at all.
As such, there is much potential in exploring the ways in which non-signatory States may — or may not — play the role of full parties to the Convention when engaging on the international plane. In some cases, these States — engaging strongly with the international refugee law regime yet choosing not to accede to the Convention — might even be conceptualized as shadow parties to the Convention.
By their participation on the international plane, non-signatory States arguably help create soft law obligations that build on the hard law that is, the Convention from which they have formally opted out.
As such, this soft law creates an interstitial and contingent normative space connecting non-signatory States to a multilateral treaty to which they are not formally party.
Importantly, the article does not seek to engage in a normative effort to position the Convention as the sine qua non of refugee protection, but rather to disrupt the emphasis on signatory States in contemporary discussions of the relevance and importance of the Convention. As such, it sketches out a new research agenda on non-signatory States and their relationship with the Convention.
In doing so, this article makes the claim that the Convention has a significant influence in non-signatory States, and that the same States engage with, and help shape developments within, international refugee law. It has detailed the many ways in which international refugee law norms are spread and used in non-signatory States, and how, by being present and active in global fora such as the UNHCR Executive Committee, and in negotiating soft law instruments such as the New York Declaration for Refugees and Migrants and the Global Compacts, these States participate in the evolution and interpretation of international refugee law.
UNHCR, itself, has demonstrated its organizational autonomy as the primary agent for the adaptation of its responsibilities and work related to international refugee law.
The author does suggest however that UNHCR needs to continue to extend and strengthen its role related to international refugee law if UNHCR is to ensure a stronger legal framework for the protection of refugees as well as a fuller respect for refugees' rights in practice.
UNHCR and International Refugee Law should be of particular interest to refugee lawyers as well as academics and students of refugee law and international law, and anyone concerned with the important role that UNHCR plays in the protection of refugees today. The book explores the role of the organisation in developing international refugee law and ensuring the effectiveness of such law.
Author : James C. Author : M.
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