When people cross borders to seek international protection, they become subject to the laws and regulations of their host state. Yet many states across the world, including several of the world’s most important refugee host states, are not signatories to the 1951 Refugee Convention that guarantees refugee rights, nor do they have any laws pertaining to asylum seekers and refugees. What comes in place of a recognized legal framework? Increasingly, it is confidential agreements negotiated between UNHCR and the host state.
Confidential agreements
For refugees, the importance of these agreements cannot be overstated. Apart from functioning as the backbone of the refugee response in the given context, the agreements are at times the sole document that spells out how refugees are to be governed, who is to govern them, and what their rights are.
But these agreements are often strictly confidential, meaning the very subjects of the agreements – people living as refugees – are left in the dark about the legal frameworks that shape their present and possible futures.
Based on our original research in Bangladesh, Jordan and Lebanon, we argue it is high time for refugees to be given access to the agreements and the policies that govern them. Promises of refugee participation will be hollow without free and equal access to the legal framework to which refugees are subject.
Alternative protection regimes
While UNHCR has developed a freely available Model Cooperation Agreement that largely focuses on the privileges and immunities of UN staff and offices, many of the agreements we are talking about, often labelled ‘Memoranda of Understanding,’ look fundamentally different in practice.
Versions that can be found in archives, or that have been leaked into the public sphere, show that these agreements are not just cooperation agreements formalizing and operationalizing UNHCR’s presence in host states, but they also provide refugees with an important alternative protection regime, covering questions of protection, emergency response, durable solutions and advocacy.
They outline the roles and responsibilities of UNHCR, which often acts as a “surrogate state” by taking on responsibilities typically belonging to states, such as refugee status determination. As such, these agreements profoundly impact refugees’ lives.
Some agreements may reiterate core refugee protection principles and, as such, create an important link between non-signatory states and the Refugee Convention. For example, UNHCR’s 1998 agreement with Jordan adopted a refugee definition similar to the Convention definition and declared Jordan’s commitment to international standards of refugee protection.
At the same time, in terms of durable solutions, the agreement is focused on refugees either being resettled or returning to their home countries, rather than offering the possibility of permanent integration in Jordan.
Another example is UNHCR’s 1993 agreement with Bangladesh. This agreement established that UNHCR would carry out its “international protection mandate” and detailed the possibilities of durable solutions for refugees from Myanmar.
The agreement upheld the right of refugees to exercise their “freedom of option” when it came to repatriation to Myanmar. It also laid out the responsibility of the Bangladesh Government to work in association with UNHCR to “raise the level of awareness of the refugees of their options and responsibilities to the host country and to other fellow refugees.” Most importantly, the agreement gave refugees from Myanmar the right to “legal assistance provided by UNHCR.”
Agreements not always benign
Other agreements may be more questionable from a human rights perspective. UNHCR’s 2003 agreement with Lebanon’s General Security Office – described in 2004 by Lebanon’s delegate at the UNHCR Executive Committee to be “equivalent to a real contract between the parties” and in lieu of Lebanon’s accession to the Refugee Convention – has been heavily criticized for adopting a Lebanese state perspective of refugees as security threats.
The agreement does not reference key protection norms such as the principle of non-refoulement but establishes a legally peculiar obligation on UNHCR to resettle recognized refugees within a set timeframe.
On the other hand, UNHCR’s 2021 agreement with Bangladesh relating to the island of Bhasan Char lays out a range of refugee rights pertaining to psycho-social counselling, community-based protection, community health services, skills, vocational training, capacity-building activities, education, telecommunication services, etc.
A matter of great concern, however, is that it does not provide refugees with the right to movement, which would enable Rohingya refugees to travel back and forth between the island and camps on the mainland. For this reason, commentators have argued Bhasan Char can be likened to a “prison island.”
Towards meaningful refugee participation
In recent years, in some cases while these very agreements are being negotiated, there has been an unprecedented push for greater participation of refugees in decision-making processes.
This is clear for example in the UN Global Compact on Refugees (GCR), which recognizes that “[r]esponses are most effective when they actively and meaningfully engage those they are intended to protect and assist”. UNHCR and governments have thus clearly committed themselves to facilitating the meaningful participation of refugees in decisions shaping their lives.
But civil society and refugee-led initiatives have long critiqued many initiatives for including refugees in decision-making processes as tokenistic. They have called for – in the words of the refugee-led Network for Refugee Voices - the inclusion of refugees “at every level of design and implementation of refugee-response programs”.
But what kind of refugee participation is possible, if they are barred from seeing the contents of UNHCR-host state agreements that govern them, and that variously affirm and restrict their rights?
We argue there can be no meaningful participation in decision-making without full and equal access to core information. If UNHCR and governments of host states are serious about the active and meaningful engagement of refugees in these processes, the first step is transparency about the content of the agreements and policies that govern refugees. Only then, can informed decision-making and meaningful participation begin.
This blogpost was originally published on the Border Criminologies blog here.