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The Normative Erosion of International Refugee Protection through UN Security Council Practice

Published online by Cambridge University Press:  03 November 2011

CHRISTIANE AHLBORN
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Abstract

Since the early 1990s, the UN Security Council has used its enforcement measures under Chapter VII of the UN Charter to address different aspects of international refugee protection from the root causes of forced displacement to the search for durable solutions to the refugee problem. At the same time, however, the Security Council has been criticized for impelling trends towards state security concerns that have emerged in the refugee-protection regime over the past two decades. By establishing safe areas in Iraq, Bosnia, and Rwanda, or linking refugee status to terrorism, the Security Council has been accused of violating established refugee-protection standards. This paper seeks to use the prism of international refugee protection to draw a more nuanced picture of the normative effects of SC actions on the development of international law generally. Shifting the analytical focus from the much-discussed responsibility of the Security Council for wrongful acts, it is submitted that the practice of the Security Council has had a considerable influence on the development and even making of norms in the field of international refugee protection, thereby eroding established refugee-protection standards. This normative erosion through the inherently political actions of the Security Council will be assessed with regard to the principal measures by which the Security Council has addressed international refugee protection, namely peace operations and economic sanctions.

Keywords

comprehensive sanctionsdisplaced personshuman rightshumanitarian accessintegrated missionsinternational humanitarian lawinternational refugee protectionpeace operationsrefugee statussafe havenstargeted sanctionsterrorismUnited Nations Security Council
Type
CURRENT LEGAL DEVELOPMENTS
Information
Leiden Journal of International Law , Volume 24 , Issue 4 , December 2011 , pp. 1009 - 1027
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 International refugee protection is defined as the totality of activities from ‘securing admission, asylum, and respect for basic human rights, including the principle of non-refoulement, [to] the attainment of a durable solution, ideally through the restoration of protection by the refugee's own country’. See UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (1994), at 8, para. 12. Accordingly, the term ‘refugee’ is considered in its broad and inclusive meaning, with emphasis on the element of coercion and the continuum of the displacement process. It includes other categories relevant to the Security Council's practice such as persons at risk of displacement, internally displaced persons, and returnees, but excludes voluntary forms of migration. See ibid., at 8, paras. 24, 25.

2 See UN Doc. S/RES/688 (1991).

3 The Security Council has, for instance, addressed the violations of human rights and humanitarian law in Somalia (UN Doc. S/RES/751 (1992), UN Doc. S/RES/814 (1993)) and Haiti (UN Doc. S/RES/940 (1994)); has continuously called on or even required parties to an armed conflict to ensure humanitarian access in various situations such as Sierra Leone (UN Doc. S/RES/1132 (1997)) and Kosovo (UN Doc. RES/1199 (1998)), as well as Sudan, Chad, and the Central African Republic (UN Doc. S/RES1778 (2007)); and has emphasized the right to return of displaced persons after conflicts in Bosnia (S/RES/820 (1993)), Rwanda (UN Doc. S/RES/1078 (1996)), and East Timor (S/RES/1272 (1999)).

4 So far, the Security Council has passed four general resolutions on the ‘Protection of Civilians in Armed Conflict’: UN Doc. S/RES/1265 (1991), UN Doc. S/RES/1296 (2000), UN Doc. S/RES/1674 (2006), UN Doc. S/RES/1894 (2009). The above-described framework further includes resolutions on other specific topics such as ‘children and armed conflict’ (UN Doc. S/RES/1261 (1999), UN Doc. S/RES/1314 (2000), UN Doc. S/RES/1379 (2001), UN Doc. S/RES/1460 (2003), UN Doc. S/RES/1612 (2005), UN Doc. S/RES/1882 (2009)); ‘women and peace and security’ and ‘sexual violence’ (UN Doc. S/RES/1325 (2000), UN Doc. S/RES/1820 (2008), UN Doc. S/RES/1888 (2009), UN Doc. S/RES/1889 (2009)).

5 On the development of ‘Transnational Policies Aimed at “Containing” Refugee Flows’, see A. Hurwitz, The Collective Responsibility of States to Protect Refugees (2009), 2.

6 For a more specific discussion of these accusations, including references, see sections 2 and 3 of this article.

7 In Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion of 28 May 1948, [1948] ICJ Rep. 57, at 64, the Court held that ‘the political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for judgment’. See also Tammes, A. J. P., ‘Decisions of International Organs as a Source in International Law’, (1958) 94 RdC 261, especially at 344Google Scholar; Conforti, B., ‘Le rôle de l'accord dans le système des Nations Unies’, (1974) 142 RdC 203Google Scholar; Lamb, S., ‘Legal Limits to United Nations Security Council Powers’, in Goodwin-Gill, G. S. and Talmon, S. (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie (1999), 361CrossRefGoogle Scholar.

8 The UNHCR Statute is annexed to UN Doc. A/RES/428 (V) (1950).

9 See Gowlland-Debbas, V., ‘La Charte des Nations Unies et la Convention de Genève du 28 Juillet 1951 Relative au Statut des Réfugiés’, in Chetail, V. (ed.), La Convention de Genève du 28 Juillet 1951 Relative au Statut des Réfugiés 50 Ans Après: Bilan et Perspectives (2001), 193, at 201Google Scholar. References to the 1951 Convention Relating to the Status of Refugees (189 UNTS 150; hereafter, ‘1951 Convention’) include the 1967 Protocol Relating to the Status of Refugees (606 UNTS 267; hereafter, ‘1967 Protocol’), which incorporates the 1951 Convention and removes the temporal and geographic limitations of the Convention.

10 These legal consequences would result from a violation of Art. 25 of the UN Charter as occasionally emphasized by the Security Council (UN Doc. S/RES/232 (1966) on South Rhodesia; UN Doc. S/RES/686 (1991) on Iraq). For a discussion of the legal consequences of such non-compliance, see Doering, K., ‘Unlawful Resolution of the Security Council and Their Legal Consequences’, (1997) 1 MPYUNL 91, at 99Google Scholar.

11 As Rosalyn Higgins noted already in 1963, although ‘the Security Council is likely to state that it is basing itself on the law as it conceives it to be, the line between applying and legislating it becomes thin: certainly a question of developing law becomes involved’. R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963), 5 (emphasis added). On law-making through the practice of political organs, see also I. Brownlie, Principles of Public International Law (2008), 692; A. Boyle and C. Chinkin, The Making of International Law (2007), 108.

12 The International Committee of the Red Cross (ICRC) extensively referred to the practice of the Security Council in situations of armed conflict in its recent study on customary international humanitarian law. See J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law, Vol. 1: Rules (2005), e.g., at 194–202.

13 This interplay between the Security Council's practice and its acceptance by states was addressed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadić case. See Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1, A.C., 2 October 1995, paras. 74–78. However, in order to be relevant for the formation of customary international law, it is evident that the general acceptance of states must be based on the existence of an (emerging) rule of general international law and not only on compliance with Art. 25 of the UN Charter.

14 On the Security Council's ‘legislative’ activities, see generally Talmon, S., ‘The Security Council as World Legislature’, (2005) 99 AJIL 175CrossRefGoogle Scholar; Alvarez, J., ‘Hegemonic International Law Revisited’, (2003) 97 AJIL 873CrossRefGoogle Scholar; Szasz, P., ‘The Security Council Starts Legislating’, (2002) 96 AJIL 901, at 901CrossRefGoogle Scholar; J. Alvarez, International Organizations as Law-Makers (2006), 184; Abi-Saab, G., ‘The Security Council as Legislator and as Executive in Its Fights against Terrorism and against Proliferation of Weapons of Mass Destruction: The Question of Legitimacy’, in Wolfrum, R. and Röben, V. (eds.), Legitimacy in International Law (2008), 109CrossRefGoogle Scholar.

15 See Newland, K. and Meyers, D. W., ‘Peacekeeping and Refugee Relief’, (1998) 5 International Peacekeeping 15, at 17CrossRefGoogle Scholar.

16 See, e.g., UN Doc. S/RES/941 (1994), referring to UN Doc. S/1994/265 (1994) and UN Doc. S/1994/674 (1994), regarding grave violations of international humanitarian law affecting the non-Serb population in those areas of the Republic of Bosnia and Herzegovina under the control of Bosnian Serb forces.

17 Wagner, J. Grombach, ‘An IHL/ICRC Perspective on Humanitarian Space’, (2005) 32 Humanitarian Practice NetworkGoogle Scholar, available online at www.odihpn.org/report.asp?ID=2765. See also Inter-Agency Standing Committee, Background Document: Preserving Humanitarian Space, Protection and Security, WO/0803/2583/7 (26 February 2008).

18 See UN Doc. A/RES/3212 (XXIX) (1974), para. 5, endorsed by UN Doc. S/RES/365 (1974), on Cyprus; UN Doc. S/RES/820 (1993), para. 7, on Bosnia; UN Doc. S/RES/999 (1995), para. 8, on Tajikistan; UN Doc. S/RES/1078 (1996), preamble, para. 7, on Rwanda; UN Doc. S/RES/971 (1995), preamble, paras. 5, 6, 7, on Georgia/Abkhazia; UN Doc. S/RES/1239 (1999), para. 4, on Kosovo.

19 On the ‘right to leave’, see Art. 13(2) of the Universal Declaration of Human Rights, which states: ‘Everyone has the right to leave any country, including his own, and to return to his country’ (UN Doc. A/RES/217A (III) (1948). Art. 12(4) of the International Covenant on Civil and Political Rights chooses a different formulation in providing that ‘No one shall be arbitrarily deprived of the right to enter his own country’, 999 UNTS 171 (1976). See generally G. Goodwin-Gill, S., ‘Right to Leave, Return and Remain’, in Gowlland-Debbas, V. (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (1996), 93Google Scholar.

20 See Chimni, B. S., ‘The Incarnation of Victims: Deconstructing Safety Zones’, in Al-Naumi, N. and Meese, R. (eds.), International Legal Issues Arising under the United Nations Decade of International Law (1995), 823, at 825Google Scholar. See generally H. Yamashita, Humanitarian Space and International Politics: The Creation of Safe Areas (2004).

21 See C. Phuong, International Protection for Internally Displaced Persons (2004), 137.

22 UNHCR, Statement by Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, to the Forty-Ninth Session of the Commission on Human Rights (3 March 1993).

23 UN Doc. S/RES/688 (1991). See C. Helton, The Price of Indifference: Refugees and Humanitarian Action in the New Century (2002), 172; see more generally S. Ogata, ‘The Right to Remain’, (1993) 92 Refugees 11.

24 The idea of the establishment of safe areas originated in international humanitarian law, which presupposes the consent of the warring parties to the creation of neutralized zones. Compare, for instance, Art. 23 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (75 UNTS 135) and Arts. 14 and 15 of the 1949 Geneva Convention Relative to the Protection to Civilian Persons in Time of War (75 UNTS 287) (hereafter, 1949 Geneva Conventions). A strong argument against consent in the case of Iraq is the fact that Saddam Hussein's government attacked the zone in Irbil by an incursion in September 1996. However, it is important to point out that the safe zones in Northern Iraq were backed by credible military strength. On the problematic question of consent, see L. Minear and T. Weiss, Mercy under Fire: War and the Global Humanitarian Community (1995), 171; and Landgren, K., ‘Safety Zones and International Protection: A Dark Grey Area’, (1995) 7 IJRL 436CrossRefGoogle Scholar.

25 G. S. Goodwin-Gill, The Refugee in International Law (1996), 141.

26 See Allain, J., ‘The Jus Cogens Nature of Non-Refoulement’, (2002) 13 IJRL 533, at 544CrossRefGoogle Scholar. As Frelick notes, ‘UN Resolution 688 is important both for what it does and does not say’, Frelick, B., ‘Refugee Rights: The New Frontier of Human Rights Protection’, (1998) 4 Buffalo Human Rights Law Review 261, at 265Google Scholar.

27 UN Doc. S/RES/819 (1993) and UN Doc. S/RES/824 (1993).

28 UN Doc. S/RES/929 (1994), para. 2.

29 See Landgren, supra note 24, at 448.

30 See Hathaway, J. and Neve, A., ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’, (1997) 10 HHRJ 115, at 136Google Scholar.

31 Ibid.

32 UN Doc. S/RES/1296 (2000), para. 15.

33 Report of the Secretary-General on the protection of civilians, UN Doc. S/1999/957 (1999), Recommendation 39, at 21. See also Goodwin-Gill, supra note 19, at 103.

34 As the UNHCR Executive Committee emphasized, ‘activities on behalf of internally displaced persons must not undermine the institution of asylum, including the right to seek and enjoy in other countries asylum from persecution’, UNHCR Executive Committee Conclusion No. 75 (XLV) (1994), para. l.

35 See generally C. Palley, ‘Legal Issues Arising from Conflicts between UN Humanitarian and Political Mandates: A Survey’, in Gowlland-Debbas, supra note 19, at 151.

36 While peacekeeping forces were once perceived as neutral, it is precisely in the pursuance of providing protection to civilians by, for example, establishing safe areas that they have sacrificed their once neutral and impartial role.

37 See Newland and Meyers, supra note 15, at 27.

38 See Kyoichi, S., ‘The “Non-Political and Humanitarian” Clause in UNHCR's Statute’, (1998) 17 Refugee Survey Quarterly 33, at 40CrossRefGoogle Scholar. See also G. S. Goodwin-Gill, ‘The Politics of Protection’, (2008) 27 Refugee Survey Quarterly 8, for a historical analysis of UNHCR's non-political mandate.

39 See Kyoichi, supra note 38, at 44–5. Of course, the humanitarian mandate of UNHCR was also partly based on the practice of its predecessor organizations, the Nansen Office for Refugees and the International Refugee Organization (IRO).

40 See S. Ogata, ‘Role of Humanitarian Action in Peacekeeping’, Keynote Address at 24th Annual Vienna Seminar (5 July 1994). See also Kyoichi, supra note 38, at 43.

41 See Kyoichi, supra note 38, at 43. On the activities of the ICRC with regard to refugees, see C. Wenger, ‘Le Comité de la Croix-Rouge et les Réfugiés’, in C. Constantopoulos, The Refugee Problem on Universal, Regional and National Level (1987), 3–38.

42 UN Doc. S/PRST/1996/1 (1996), in connection with S/PRST/1995/41 (1995).

43 See Newland and Meyers, supra note 15, at 18.

44 S. Ogata, ‘Refugees: Challenge of the 1990s’, Statement at the School for Social Research, New York (11 November 1992).

45 The precedent was set in the case of Iraq; see UN Doc. S/RES/688 (1991), para. 3. Further examples include UN Doc. S/RES/794 (1992), Preamble 3, on Somalia; UN Doc. S/RES/929 (1994), para. 3, referring to UN Doc. S/RES/925 (1994), paras. 4(a), 4(b), on Rwanda; UN Doc. S/RES/1132 (1997), para. 2, on Sierra Leone; UN Doc. RES/1199 (1998), paras. 2, 4(c), on Kosovo; UN Doc. S/RES/1234 (1999), para. 9, UN Doc. S/RES/1355 (2001), Preamble and para. 19, on the Democratic Republic of Congo (DRC); UN Doc. S/RES/1778 (2007), para. 17, on Sudan, Chad, and the Central African Republic.

46 UN Doc. S/RES/1502 (2003), Preamble (emphasis added).

47 Although these integrated missions certainly have their predecessors in the increasingly multifunctional UN peace operations of the 1990s, the concept of ‘integrated mission’ was first developed to ensure the effective division of tasks among the different actors involved in the implementation of the peace in Kosovo in 1999. It was subsequently further refined in the UN missions in East Timor, Sierra Leone, Afghanistan, Liberia, the DRC, Burundi, Haiti, Iraq, Ivory Coast, and Sudan. See E. B. Eide et al., Report on Integrated Missions: Practical Perspectives and Recommendations, Independent Study for the Expanded UN ECHA Core Group, May 2005, 12.

48 See also Palley, supra note 35, at 167.

49 UN Doc. S/RES/1265 (1999), para. 14.

50 See Eide et al., supra note 47, at 7.

51 In his revised Note of Guidance on Integrated Missions, the UN Secretary-General defined integration as ‘the guiding principle for the design and implementation of complex UN operations in post-conflict situations and for linking the different dimensions of peacebuilding (political, development, humanitarian, human rights, rule of law, social and security aspects) into a coherent strategy. An integrated mission is based on a common strategic plan and a shared understanding of the priorities and types of programme interventions that need to be undertaken at various stages of the recovery process’, UN Secretary General Note of Guidance of Integrated Missions (9 February 2006), para. 4, available online at http://reliefweb.int/node/22464. For an overview of different UN missions with varying degrees of integration, see H. Hänggi, and Scherrer, V., ‘Recent Experience of Integrated Missions in Security Sector Reform’, in Hänggi, H. and Scherrer, V. (eds.), Security Sector Reform and UN Integrated Missions: Experience from Burundi, the Democratic Republic of Congo, Haiti, and Kosovo (2008), 3–25, at 9Google Scholar.

52 The UN Secretary-General continues to underline that an ‘integrated approach and integration arrangements can yield significant benefits for humanitarian operations’ if these integration arrangements ‘take full account of recognized humanitarian principles, allow for the protection of humanitarian space, and facilitate effective humanitarian co-ordination with all humanitarian actors’. See UN Secretary-General Decision No. 2008/24 on Integration (26 June 2008), at 1 (para. i(d)), available online at www.undg.org/docs/9898/Integration-decision-SG-25-jun-08.pdf.

53 See L. Picchio Forlati and L.-A. Sicilianos, Les sanctions économiques en droit international [Economic Sanctions in International Law] (2004), 293.

54 See G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law (2007), at 314.

55 See Arts. 17–30 of the 1951 Convention. Strictly speaking, the Convention does not grant any rights, but only imposes obligations on states parties to the Convention.

56 See, e.g., the 1966 International Covenant on Economic Social and Cultural Rights as the most pertinent human-rights instrument in this context (993 UNTS 3). On complementary protection through human rights, see generally J. McAdam, Complementary Protection in International Refugee Law (2006).

57 Letter from the Secretary-General Addressed to the President of the Security-Council, UN Doc. S/22366 (1991), para. 18. See also Committee on Economic, Social and Cultural Rights, General Comment 8: The Relationship between Economic Sanctions and Economic Social and Cultural Rights, UN Doc. E/C.12/19997/8 (1997).

58 See Kourula, P., ‘International Protection of Refugees and Sanctions: Humanizing the Blunt Instrument’, (1997) 9 IJRL 255, at 257CrossRefGoogle Scholar.

59 See Burci, G. L., ‘The Indirect Effects of United Nations Sanctions on Third States: The Role of Article 50 of the UN Charter’, (1995) 2 African Yearbook of International Law 157Google Scholar. For the general practice on Art. 50 of the UN Charter, see Bryde, B.-O. and Reinisch, A., ‘Article 50’, in Simma, B. (ed.), The Charter of the United Nations, 784–7Google Scholar. See also infra note 64.

60 UNHCR, Addendum to the Report of the United Nations High Commissioner for Refugees, UN Doc. A/47/12/Add.1 (1993), para. 8 (emphasis added).

61 See generally Reinisch, A., ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’, (2001) 95 AJIL 851CrossRefGoogle Scholar.

62 See generally J. M. Farrall, United Nations Sanctions and the Rule of Law (2007), 106ff.

63 See Kourula, supra note 58, at 258.

64 See, e.g., UN Doc. A/RES/51/193 (1997) in which the General Assembly encourages the Security Council to provide special reports in accordance with Arts. 15 and 24 of the UN Charter, and UN Doc. A/RES/49/58 (1995), UN Doc. A/RES/50/51 (1996), UN Doc. A/RES/50/58E (1995), and UN Doc. A/RES/51/208 (1996), in which the General Assembly calls for an examination of the special economic problems confronting states in carrying out sanctions under Art. 50 of the UN Charter. This has led to a series of reports, such as from the Secretary-General and the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, on means of improving the mechanisms, and criteria concerning the implementation and lifting of sanctions (see, e.g., UN Doc. A/50/361 (1995), UN Doc. A/50/423 (1995), and UN Doc. A/51/356 (1996)). The Security Council took note of theses developments, inter alia, in UN Doc. S/24728 (1992) and UN Doc. S/25035 (1992).

65 See Committee on Economic, Social and Cultural Rights, supra note 57.

66 See studies and reports by C. von Braunmühl and M. Kulessa, The Impact of Sanctions on Humanitarian Assistance Activities: Report of a Study Commissioned by the United Nations Department of Humanitarian Affairs (1995); WHO, The Impact of UN Sanctions on the Population in Iraq since the Gulf Crisis, WHO/EHA96.1 (March 1996); UNICEF, Impact of Reduction in Food Ration on the Most Vulnerable Children and Women (October 1994). See also the work of the Inter-Agency Standing Committee on the humanitarian impact of sanctions established pursuant to UN Doc. A/RES/46/182 (1991) and its resulting statement to the Security Council in UN Doc. S/1998/147 (1998).

67 See Tostensen, A. and Bull, B., ‘Are Smart Sanctions Feasible?’, (2002) 54 WP 373, at 373Google Scholar.

68 World Summit Outcome, A/RES/60/1 (2005), paras. 106–108.

69 UN Doc. S/RES/1314 (2000), para. 15.

70 See supra note 45, and accompanying text.

71 UN Doc. A/RES/51/242 (1997), para. 15 (emphasis added). See also the Supplement to an Agenda for Peace Agenda for Peace: UN Doc. A/50/60-S/1995/1 (1995), para. 66, in which the Secretary-General called sanctions a ‘blunt instrument’. The Secretary-General's view was generally supported by the Security Council in a presidential statement: UN Doc. S/PRST/1995/9 (1995).

72 The procedure provided a major deviation from the delivery-by-delivery requests for authorizations, originally adopted in the guidelines of the committee. For a critical assessment of the development of the sanctions procedure, see Kourula, supra note 58, in particular at 263.

73 See ibid., at 263, citing DPI Press Release, SC/6086 (1995), containing a statement issued by Ambassador Emilio J. Cardenas, Chairman of the Security Council Committee established pursuant to UN Doc. S/RES/724 (1991) concerning Yugoslavia, indicating that, on 15 August 1995, the Committee had approved, among others, the UNHCR's requests for supply of fuel and helicopter flights, submitted to the Committee the previous day.

74 See Kourula, supra note 58, at 263.

75 UN Doc. S/RES/986 (1995). On the humanitarian impact of the Oil-for-Food Program, especially with regard to international refugee protection, see G. Loescher, ‘A Disaster Waiting to Happen’, The Guardian, 2 February 2003, available online at www.guardian.co.uk/world/2003/feb/02/iraq.immigration.

76 See Tostensen and Bull, supra note 67, at 381.

77 UN Doc. S/RES/1373 (2001). The first time the Security Council adopted a general resolution on international terrorism in which it appeared to identify refugees and asylum seekers as potential participants was in October 1999. See UN Doc. S/RES/1269 (1999).

78 See Gowlland-Debbas, V., ‘The Link between Security and International Protection of Refugees and Migrants’, in Chetail, V. (ed.), Mondialisation, migration et droits de l'homme: Le droit international en question [Globalization, Migration and Human Rights: International Law under Review] (2007), 281, at 298Google Scholar; Goodwin-Gill, G. S., ‘Forced Migration, Refugee Rights and Security’, in McAdam, J. (ed.), Forced Migration, Human Rights and Security (2008), 1Google Scholar; Noll, G., ‘Securitizing Sovereignty? States, Refugees, and the Regionalization of International Law’, in Newman, E. and van Selm, J. (eds.), Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003), 277Google Scholar.

79 UN Doc. S/RES/1373 (2001), paras. 3(f), 3(g). As Penelope Mathew observes, the Council probably drew this language from the General Assembly's Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, annexed to UN Doc. A/RES/51/210, ‘Measures to Eliminate International Terrorism’ (1996), para. 3, but omitting the references to the importance of the safeguards of the 1951 Convention. See P. Mathew, ‘Resolution 1373: A Call to Pre-Empt Asylum Seekers? (or “Osama, the Asylum Seeker”)’, in McAdam, supra note 78, at 25.

80 UN Doc. S/RES/1373 (2001), para. 5; see also UN Doc. S/RES/1377 (2001), Preamble. Art. 1F(c) of the 1951 states that ‘[t]he provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: . . . (c) he has been guilty of acts contrary to the purposes and principles of the United Nations'.

81 For a discussion of the quasi-legislative nature of Res. 1373, see the references in supra note 14.

82 See generally Alvarez, supra note 14, at 196; Abi-Saab, supra note 14.

83 UN Doc. S/RES/1267 (1999). On the implementation of anti-terrorism resolutions at the national level, see generally Bianchi, A., ‘Security Council's Anti-Terror Resolutions and Their Implementation by Member States: An Overview’, (2006) 4 JICJ 1044Google Scholar.

84 See Goodwin-Gill and McAdam, supra note 54, at 195. See also UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees (4 September 2003), para. 41.

85 See UNHCR, UNHCR Statement on Article 1F of the 1951 Convention (July 2009), at 23ff.

86 SC resolution UN Doc. S/RES/1377 (2001) underlines that ‘any other form of support’ for acts of terrorism is contrary to the purposes and principles of the United Nations. For a critical assessment, see ibid., at 26.

87 See generally Goodwin Gill and McAdam, supra note 54, at 184–9.

88 See Allain, supra note 26, at 546. Art. 33(2) of the 1951 Convention reads: ‘The benefit of the present provision [on the prohibition of refoulement] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’ While Art. 1F of the 1951 Convention will lead to the cancellation of refugee status on the basis of exclusion and expulsion ex tunc, Arts. 32 and 33(2) may result in the withdrawal of protection from non-refoulement ex nunc. See UNHCR, supra note 84, paras. 13–17.

89 As occurred in the ICJ's interim decision in the Lockerbie case: Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, [1998] ICJ Rep. 3. See I. Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (1998), 221.

90 For a discussion of the status of the principle of non-refoulement, see Goodwin-Gill and McAdam, supra note 54, at 206ff.

91 On the limits imposed on SC action by jus cogens, see generally E. de Wet, The Chapter VII Powers of the United Nations Security Council (2004), 187–91. For a recent decision in the counter-terrorism context, see Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, [2005] ECR II-3649.

92 See Bruin, R. and Wouters, K., ‘Terrorism and the Non-Derogability of Non-Refoulement’, (2003) 15 IJRL 5CrossRefGoogle Scholar.

93 The power may be exercised, ‘if the Secretary of State reasonably . . . (a) believes that the person's presence in the UK is a risk to national security, and (b) suspects that the person is a terrorist’, Anti-Terrorism, Crime and Security Act 2001, Chapter 24, section 21(1).

94 Anti-Terrorism, Crime and Security Act 2001, Chapter 24, section 33(1) lit. (a) and (b). The German Asylum Procedures Act provides for a similar conflation of Arts. 1F and 33(2) of the 1951 Convention, as criticized by the UNHCR, supra note 85, at 16.

95 Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, File No. 27790. See Okafor, O. C. and Okoronkwo, P. L., ‘Re-Configuring Non-Refoulement? The Suresh Decision, “Security Relativism”, and the International Human Rights Imperative’, (2003) 15 IJRL 30CrossRefGoogle Scholar. For an overview of further terrorism-related immigration cases at the national and regional levels, see Saul, B., ‘Exclusion of Suspected Terrorists from Asylum: Trends in International and European Refugee Law’, (2004) 26 IIIS Discussion Paper (University of Oxford), at 5Google Scholar.

96 Lubbers, R., ‘Message’, in Schmitt, M. N. and Beruto, G. L. (eds.), Terrorism and International Law: Challenges and Responses (2003), 13, at 13Google Scholar. See also Ruud Lubbers's statement as acting High Commissioner before the Security Council in 2002 (UN Doc. S/PV.4470 (2002), at 3), in which he underlined that ‘we must ensure Governments avoid making unwarranted linkages between refugees and terrorism’.

97 UN Doc. 1373 (2001), para. 3(g).

98 UN Doc. S/RES/1456 (2003), para. 6.

99 UN Doc. S/RES/1624 (2005), Preamble and para. 4.

100 See, e.g., UN Doc. A/RES/51/210 (1996), para. 5; UN Doc. A/RES/57/219 (2003), para. 1; UN Doc. A/RES/62/159 (2008), Preamble and para. 1. See also UN Doc. A/RES/63/185 (2009), para. 3.

101 Brownlie, supra note 89, at 223. Goodwin-Gill and McAdam succinctly underline that ‘[i]t is one thing to state as a matter of policy that terrorism is contrary to the purposes and principles of the United Nations, but quite another to translate that policy into a rule of law’, Goodwin-Gill and McAdam, supra note 54, at 196.

102 H. Kelsen, The Law of the United Nations (1951), 294.

103 See Gowlland-Debbas, V., ‘The Functions of the United Nations Security Council in the International Legal System’, in Byers, M. (ed.), The Role of Law in International Politics: Essays in International Law and International Politics (2000), 277, at 287Google Scholar.