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In Lieu of the 1951 Refugee Convention: The Role of UNHCR-Host State Memoranda of Understanding in the Middle East

Prof. Dr. Maja Janmyr, Faculty of Law, University of Oslo; Research Associate, Refugee Studies Centre, University of Oxford; Senior Visiting Researcher, Global Migration Centre, Graduate Institute Geneva

 

Introduction

Many of the forty-four UN member states that are non-signatory to the 1951 Refugee Convention are found in the Middle East. In this region, only Iran, Israel, Egypt and Yemen are party to the Convention; while states such as Iraq, Lebanon, Jordan and most states in the Gulf region are non-signatories. Amid a tendency in both policy and academic research to perpetuate the normative and geographical parameters established by the 1951 Refugee Convention, these states are often seen as “exceptions” to the international refugee law regime.

For too long we have accepted, and even nurtured, quite sweeping observations about the role of international refugee law in non-signatory states. In the Middle East, for example, it has been argued that it is “ […]nearly impossible for the state to adopt international refugee law” and that “international protection does not exist.” In the context of the GCC states, one commentator even argued in 2015 that these states “simply don’t do refugees.” 

Such simplified depictions are flawed in a number of ways; they suppose that these Middle Eastern states are and have been wholly absent in the development of international refugee law, that they fundamentally contest the key principles underlying this regime, and that they play no significant role in global refugee protection. While the roles of Middle Eastern non-signatory states should not be exaggerated, neither should they be discounted.

As a way of countering the perceived exceptionalism of these non-signatory states, two research projects (BEYOND and REF-ARAB) at the University of Oslo are well underway in examining the relation between these states and the international refugee law regime. Drawing upon this research, this blogpost briefly highlights the examples of Lebanon and Saudi Arabia and the role that the Memoranda of Understanding (MoU) negotiated between the host state and the United Nations High Commissioner for Refugees (UNHCR) play as alternative protection regimes to the 1951 Refugee Convention.

UNHCR in Lebanon and Saudi Arabia

International refugee law exists in non-signatory states in a number of ways. One such way is through the presence of UNHCR, an organization whose competence with respect to refugees is universal in nature, without any geographical limitation. This means that in both signatory and non-signatory states alike, UNHCR often has a highly operational presence, engaging in both international protection and direct assistance to refugees and asylum seekers.

In Lebanon and Saudi Arabia, UNHCR has been present since the early 1960s and 1980s respectively. At the UNHCR archives in Geneva, I am currently exploring closer the early days of UNHCR’s operations in Lebanon. My colleague Dr Charlotte Lysa has similarly collected historical UNHCR archival material on Saudi Arabia, which we draw on in our research article “UNHCR’s Expansion to the GCC states: Establishing a UNHCR Presence in Saudi Arabia 1987-1993” (forthcoming in Middle East Critique). We argue that an unprecedented opportunity for UNHCR to establish a formal presence in that country emerged in the context of the 1991 Gulf War. We show how Saudi’s hosting of Iraqi refugees in the Rafha camp provided a watershed moment for UNHCR to carve out an official presence.

The MoU as an Alternative Protection Regime

UNHCR’s presence in the region is often formalized through the negotiation of MoUs with the host authorities. These MoUs may be considered to be alternative protection regimes to the 1951 Refugee Convention by providing a legal framework to regulate the status of refugees. The agreements lay the groundwork for UNHCR’s official presence and often create an important link between non-signatory states and the 1951 Convention. As has been argued by colleagues elsewhere, sometimes the substantive content of the agreements may bind the host state into observing norms and principles well beyond anything that could be derived from customary international law or even the 1951 Convention itself.

The research Dr Lysa and I have done together shows how, in Saudi Arabia, UNHCR negotiated first, a Note Verbale providing UNHCR with official recognition in 1992, and second, a formal MoU in 1993 (Janmyr and Lysa forthcoming 2022). Importantly, this MoU provides the basis for UNHCR-Saudi relations still today. Content-wise, however, the MoU is broad brushed, for example when it comes to key concepts such as ‘protection’ and ‘durable solutions.’ But it is also surprisingly detailed, for example on Saudi Arabia’s financial contribution to the running costs of UNHCR’s offices in the country. We argue that this imbalance is not only the direct result of years of negotiations between UNHCR and the Saudi government, but also reflects UNHCR’s pragmatic approach to refugee protection in the entire region. How, then, has the MoU affected UNHCR’s ability to in practice execute its international mandate, in Saudi Arabia as well as in the other GCC countries? Now that’s an excellent question for future research.

My previous research on Lebanon similarly shows how UNHCR’s presence in that country also has been challenging to formalize. Rumor has it that when UNHCR first established itself on Lebanese soil, it did so within the scope of a so-called ‘Gentlemen’s Agreement’ – that is, an informal, legally non-binding and often unwritten agreement. In my on-going legal historical research, however, I have come across formalized agreements dating from the last mid-century that I am currently examining closer. This suggests, then, that the legal history of UNHCR-Lebanese relations is more complex and perhaps deeper than we have previously recognized.

Of more recent formalized agreements however, the 2003 MoU reached between UNHCR and Lebanon’s General Security Office stands out. This MoU has been heavily criticized for having been negotiated with the country’s security agency rather than, which is most common, the Ministry of Foreign Affairs. Claims have also been made that the MoU not only legitimized the notion of Lebanon not being a country of asylum, but also helped introduce this approach as a central principle in Lebanon’s refugee governance. Ever since, this principle has been incorporated into numerous official documents, and even judicial decisions. More worryingly, the agreement makes no mention of key refugee protection norms such as that of non-refoulement. While claims have been made that the MoU essentially broke down shortly after its negotiation, a question for further examination would obviously be to what extent the content of the agreement has influenced both UNHCR and the Lebanese government’s handling of refugee affairs?

In our understanding of the relation between the international refugee law regime and states non-signatory to the Refugee Convention, the MoUs and their negotiation processes thus appear central. As this brief blog post has posited, the role of the MoUs as alternative protection regimes warrant a considerable research effort in the time ahead.

This blog post is based on a lecture given by Professor Maja Janmyr on April 28, 2022 as part of the Institute for Migration Studies’ Movement and Safety Webinar Series.

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