Article 80 of the Treaty on the Functioning of the European Union—the Lisbon Treaty—provides that the policies and practices of the Union in the area of asylum are governed by the principles of solidarity and fair sharing of responsibility. But recent developments with respect to the ‘Dublin II’ Regulation are straining the concept of solidarity within the European Union (EU).

The Regulation allocates responsibility for examining asylum applications among 31 participating countries.i It was adopted in 2003 and replaced the 1990 Dublin Convention, which initially concerned just 12 countries.

The objectives of the ‘Dublin II’ Regulation are to ensure that asylum seekers have access to procedures for assessing their claims, to prevent them from lodging claims in several countries, and to determine as quickly as possible the state responsible for examining an application. The perceived need for the system arose as border controls in parts of Europe progressively disappeared, and governments feared that asylum seekers would file multiple claims, or move around the continent looking for better conditions and chances of receiving protection—known as ‘asylum-shopping’.

The general rule established by the Regulation is that the responsible country is the one where the applicant first enters the territory of the participating states, in the case of irregular entry. If the applicant enters legally, responsibility rests with the state which issued the entry authorization. Specific criteria apply for unaccompanied children or separated families, to ensure respect for the best interests of the child and family unity.

While the Regulation assigns responsibility for examining asylum claims, it does not contain any mechanism to ensure that responsibility is fairly distributed. In fact, because most asylum seekers arrive overland and cross the external EU border without authorization, if the Regulation could be implemented as intended, responsibility for hosting asylum seekers and considering their claims would fall mostly on countries located at the EU’s external borders.

The Regulation was supposed to avoid the controversy that had plagued the Dublin Convention. That Convention was adopted before the decision to establish a Common European Asylum System, and was criticized for having ‘knowingly and willfully disregarded divergences among Member States’ protection systems’.ii However, the ‘Dublin II’ Regulation has come in for similar criticism.

Like its predecessor, the Regulation is based on the principle of mutual trust. It relies on the presumption that all participating states will fulfil their responsibilities toward asylum applicants in a similar manner. Over the years, this presumption has been challenged, first in national courts and then at regional level. Both of Europe’s regional courts have now confirmed that under the system established by the Regulation, a sending state may not simply assume that a receiving state will respect its international obligations.

In January 2011, the European Court of Human Rights (ECtHR) ruled in M.S.S. v. Belgium and Greece that a transferring state must verify that a receiving state complies with its international obligations.iii One state may not send an asylum seeker to another state, the Court said, if that would expose the individual to a risk of torture, inhuman or degrading treatment. Such treatment is clearly prohibited by Article 3 of the European Convention on Human Rights (ECHR). But the Court’s finding that violations of Article 3 were possible within the EU shook the foundations of the Dublin system. Moreover, the Court made it clear that the asylum seeker does not have to present evidence of the would-be receiving state’s failure to comply with its obligations; the presumption of compliance can be rebutted by external sources. In that context, the Court gave particular weight to the views of UNHCR.

In December 2011, the Court of Justice of the European Union (CJEU) further clarified that the principle of mutual trust cannot be relied upon in an automatic way. In N.S. v. Secretary of State for the Home Department (UK) and M.E. and others v. Refugee Applications Commissioner (Ireland), the CJEU also addressed the lawfulness of transfers of asylum seekers to Greece under the ‘Dublin II’ Regulation, this time in the framework of EU law, including the Charter of Fundamental Rights and its Article 4, which also prohibits torture and inhuman or degrading treatment or punishment.

The CJEU ruled that an EU Member State may not transfer an asylum seeker to another Member State in a situation where it ‘cannot be unaware’ of systemic deficiencies in the asylum procedure and reception conditions there.iv In other words, if there are reasonable grounds for believing that the asylum seeker would face a risk of treatment in violation of Article 4 of the Charter, the State may not go ahead with the transfer, and must examine the claim itself. The Court looked at how the risk of inhuman or degrading treatment can be assessed, and drew attention to sources of information including NGO reports, materials prepared by the European Commission, and information provided by UNHCR.

In addition to these landmark rulings, further decisions were issued both by national courts and the ECtHR in late 2011 and early 2012, suspending Dublin transfers to EU Member States other than Greece, on the grounds that appropriate standards of treatment could not be guaranteed for asylum seekers.

These developments are very significant for the operation of the Dublin II Regulation, and for the Common European Asylum System as a whole. They have led EU officials and Member States to acknowledge that more effort must be invested in making sure that the obligations set out in EU asylum law are respected in practice throughout the Union.

i The formal title is ‘Council Regulation (EC) No. 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national’. Participating states are the 27 EU Member States plus Iceland, Liechtenstein, Norway and Switzerland.

ii G. Noll, ‘Formalism v. Empiricism: Some Reflections on the Dublin Convention on the Occasion of Recent European Case Law’, Nordic Journal of International Law, 70, 2001, 161.

iii M.S.S. v. Belgium and Greece, Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011.

iv N. S. v. Secretary of State for the Home Department and M. E. and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C–411/10 and C–493/10, European Union: European Court of Justice, 21 December 2011.

The Nansen Conference on Climate Change and Displacement in the 21st Century was convened in June 2011 by the government of Norway, coinciding with the 150th birthday of Fridtjof Nansen, the Norwegian scientist, explorer, and humanist who was appointed High Commissioner for Refugees by the League of Nations in 1921.

The Conference in Oslo brought together experts and representatives of governments, civil society, and UN agencies to consider the humanitarian consequences of climate change. Chaired by the United Nations Assistant Secretary-General for Disaster Risk Reduction, Margareta Wahlström, the Conference proposed the following ten Principles to guide future action, known as the ‘Nansen Principles’:

I. Responses to climate and environmentallyrelated displacement need to be informed by adequate knowledge and guided by the fundamental principles of humanity, human dignity, human rights and international cooperation.

II. States have a primary duty to protect their populations and give particular attention to the special needs of the people most vulnerable to and most affected by climate change and other environmental hazards, including the displaced, hosting communities, and those at risk of displacement. The development of legislation, policies and institutions as well as the investment of adequate resources are key in this regard.

III. The leadership and engagement of local governments and communities, civil society, and the private sector are needed to address effectively the challenges posed by climate change, including those linked to human mobility.

IV. When national capacity is limited, regional frameworks and international cooperation should support action at the national level and contribute to building national capacity, underpinning development plans, preventing displacement, assisting and protecting people and communities affected by such displacement, and finding durable solutions.

V. Prevention and resilience need to be further strengthened at all levels, particularly through adequate resources. International, regional and local actors have a shared responsibility to implement the principles enshrined in the Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters.

VI. Building local and national capacity to prepare for and respond to disasters is fundamental. At the same time, the international disaster response system needs to be reinforced. The development of multi-hazard early warning systems linking local and global levels is critical.

VII. The existing norms of international law should be fully utilized, and normative gaps addressed.

VIII. The Guiding Principles on Internal Displacement provide a sound legal framework to address protection concerns arising from climate—and other environmentally-related internal displacement. States are encouraged to ensure the adequate implementation and operationalization of these principles through national legislation, policies and institutions.

IX. A more coherent and consistent approach at the international level is needed to meet the protection needs of people displaced externally owing to sudden-onset disasters. States, working in conjunction with UNHCR and other relevant stakeholders, could develop a guiding framework or instrument in this regard.

X. National and international policies and responses, including planned relocation, need to be implemented on the basis of nondiscrimination, consent, empowerment, participation and partnerships with those directly affected, with due sensitivity to age, gender and diversity aspects. The voices of the displaced or those threatened with displacement, loss of home or livelihood must be heard and taken into account, without neglecting those who may choose to remain.

The situation of small island states has received considerable attention as a potentially dramatic example of climate change-induced displacement. Scientific studies, including those of the Intergovernmental Panel on Climate Change ( IPPC), indicate that sea levels are rising and will continue to do so.

Already in 2001, the IPPC highlighted that small island states are among the areas most vulnerable to the effects of climate change, although they are responsible for less than one per cent of the world’s greenhouse gas emissions. The IPPC drew attention to the fact that land loss from sea-level rise on atolls and low limestone islands could disrupt virtually all economic and social sectors. In such a case, the panel warned, potential options for the population may be limited to migration.

The prospect of sea-level rise threatens small low-lying islands in unique ways. Average elevation on Tuvalu and the Maldives Islands, for example, is only about one metre, and therefore leaves these countries at risk of both sudden-onset disasters—such as tsunamis triggered by earthquakes—and of rising sea levels resulting from global warming.

While the possibility that these islands will ‘sink’ or be inundated by rising sea levels has generated much attention, such events will not occur overnight. Instead, it is likely that global warming will create a multitude of problems—damage and destruction of coral reefs, increasing salinity of water, decreased food production, harm to the tourist industry—that will lead people to leave their islands long before they are submerged by rising sea-levels. In fact, the tipping point for migration and displacement is considered more likely to result from declining availability of fresh water than from flooding. An ominous sign of this was the declaration of a national emergency in Tuvalu in September 2011 due to continuing drought, critically low community water supplies, and damaged desalination units.

The particular vulnerability of small islands underlines the need for mitigation measures to reduce the likelihood of sea-level rise, for community preparedness and contingency planning initiatives, and for governments to increase their capacity to plan, monitor and respond effectively to climate change-induced displacement. Small island vulnerability also underscores the importance of looking at adaptation measures which could enable populations to remain where they are—though such measures may be prohibitively expensive. It also points to a need to consider scenarios in which large-scale relocation may be necessary, although the history of population relocations in the Pacific region, for example, is not a positive one.

The fundamental question is whether these situations will be met by ad hoc reactions, or by a coherent international response designed to respect the rights of the affected populations, including the right to their national identity.

UNHCR developed new methods for reaching out to Iraqi refugees in Syria’s capital city, Damascus, mobilizing refugee women to identify and assist vulnerable fellow refugees living among the city’s more than two million inhabitants. The ‘Outreach Volunteer Initiative’ which started in 2007 is a model which could be replicated in urban settings elsewhere.

The exodus from Iraq

The outflow of refugees from Iraq following the US-led military intervention in 2003 intensified sharply in 2006, reflecting an upsurge in sectarian violence in Iraq. The refugees fled mainly to neighbouring countries, with the largest numbers settling in and around the Damascus and the country’s second-largest city, Aleppo. Only some of the refugees came forward to be registered by UNHCR. That number peaked in 2008, by which time UNHCR had registered more than 200,000 Iraqi refugees, or around 55,000 families—mostly in Damascus. Many, but not all, were well-educated and came from urban areas in Iraq, where they had previously held good jobs and enjoyed a relatively high standard of living.

A very large proportion of the refugees had experienced or witnessed egregious acts of violence in Iraq, and suffered emotional and physical consequences. In 2009, more than 30 per cent of the Iraqi refugees registered with UNHCR were assessed as being particularly vulnerable—up to 50 per cent when medical conditions were included. Many reported having survived torture and/or sexual or gender-based violence in Iraq.

In Syria, the refugees were safe but faced other problems: social isolation, a lack of supportive community structures, shifts in gender roles within families, deterioration in socio-economic status, and deepening poverty. The psycho-social well-being of many refugees was affected, notably men who often expressed feeling ‘not useful’ any more.

Almost 10 per cent of the families UNHCR registered in Syria reported mental health and psychosocial difficulties, such as symptoms of anxiety, depression, and other mood disorders, as well as physical exhaustion or pain. In some extreme cases, their suffering led them to harm themselves or others. Suicide attempts, child abuse, and other forms of domestic violence were reported.

Adapting to a new situation

Unlike many other situations of mass influx, the refugees were not accommodated in camps. UNHCR had little prior experience in dealing with large populations of refugees in urban areas and no blueprint to follow. The agency struggled to find the best way to make contact with the refugees, determine their needs, understand their intentions, and identify the most needy. Its difficulties in reaching the widely dispersed urban refugee population, combined with an underresourced psychosocial sector, few NGO partners, and a limited community-based support system, meant that UNHCR’s office came under pressure from large crowds of refugees who approached it every day.

Following the International Conference on addressing the humanitarian needs of Iraqi refugees and IDPs convened by the High Commissioner in April 2007 to draw attention to the crisis, international interest grew and UNHCR was able to mobilize substantial resources, rapidly scale up its activities, deploy more staff to the field, and develop innovative programmes to address the specifically urban characteristics of the situation.

One of these innovations was the establishment of a network of outreach volunteers and support groups composed of qualified refugees. Others involved setting up refugee community centres for social and recreational activities, and mass information campaigns addressed to refugees—using mobile phone text messages. UNHCR also opened an ambitious one-stop-shop facility on the outskirts of town, where the diverse needs of refugees could be attended to, from registration to counselling to food distribution.

Reaching out to the most vulnerable

But the most vulnerable refugees did not necessarily come forward for help. UNHCR realized that it would need support from within the refugee community to make contact with them. The Outreach Volunteers Programme, created in September 2007, was aimed at identifying vulnerable refugees in urban settings.

The initiative started when UNHCR invited some Iraqi refugee women to a focus group discussion, and proceeded to recruit volunteers to seek out vulnerable and hard-to-reach refugees. By 2009, UNHCR had engaged 76 volunteer caseworkers, covering 38 neighbourhoods in and around Damascus. The volunteers dealt directly with up to 7,000 cases per month, mainly through counselling, home visits, and by providing community support and services. Only a relatively small number of refugees had to be referred to UNHCR for follow-up action.

The volunteers were selected according to their willingness, ability, and acceptability to the refugee community. Preference was given to the recruitment of refugee women, who had easier access to at-risk households, in particular those headed by women.

All in all, 135 volunteers were given orientation on UNHCR’s mandate and code of conduct, training in communication and on effective ways to offer support and engage their community. They signed an agreement committing themselves to confidentiality and non-discriminatory approaches to refugees. Although they did not receive a salary, they did receive a small sum to cover transport and telephone expenses.

The functions of the volunteer workers included identifying and visiting particularly vulnerable refugees; providing counselling and practical assistance; facilitating refugee access to services; identifying and mobilizing community resources; improving UNHCR’s understanding of the refugee population; and supporting UNHCR’s public information work. In addition, the programme helped to restore hope and dignity among the refugee community at large, and among the volunteers themselves, who were not otherwise authorized to take up employment in Syria.

Strengthening national capacities

The volunteers played a particularly important role in addressing psychosocial difficulties among the refugees. Normally, UNHCR would address such problems by referring individuals in need of care to local mental health practitioners. But this was not possible in all cases in Damascus, as the Syrian mental health sector was under-resourced, with just 89 psychiatrists in the country for a population of around 22 million in 2010. The minimum ratio recommended by WHO is 25 times that number.

In 2008, in a further innovation, UNHCR established a Psychosocial and Mental Health Programme, which relied on resources within the refugee community to help other refugees, and also included a national capacity-building component.

By 2011, 17 of the 135 refugee outreach volunteers had been trained by the Psychosocial and Mental Health Programme in psychosocial support and first aid, and were helping to identify vulnerable refugees, provide counselling to refugees through home visits, and liaise with existing local mental health and psychosocial services. A larger group of refugee volunteers managed an Outreach Counselling Centre, set up by UNHCR in a refugee-hosting neighbourhood of Damascus, where 16 different psychosocial and recreational activities were available to refugees.

The national capacity-building element of the programme helped to strengthen local mental health and psychosocial support services, through training and curriculum development. Senior mental health professionals received training in working with refugees, and they in turn were able to support nonspecialized front-line staff.

With the extra capacity provided by refugee volunteers and the enhanced national capacity, UNHCR’s Psychosocial and Mental Health Programme had benefited over 6,000 refugee families by the end of 2011.

Lessons learned

UNHCR does not view refugee outreach workers as a panacea. In Syria, their work was not easy to monitor, and there was significant turnover as refugees departed for resettlement. The preference for engaging refugee women, while justified under the circumstances, also raised questions in the context of the application of UNHCR’s Age, Gender, and Diversity Mainstreaming policy.

Nonetheless, the initiative proved to be a valuable means of reaching out to the refugee population. An internal evaluation found that it not only helped to bring a sustainable form of assistance to the most vulnerable refugees but also empowered the volunteers themselves, strengthened refugee representation and advocacy, improved relations within the refugee community, and between the refugee community and UNHCR.

India hosts sizeable refugee populations in both rural and urban areas, although the country is not a party to the 1951 Refugee Convention or its 1967 Protocol. In recent years, the population of concern to UNHCR in India’s capital city has grown more diverse, and UNHCR has sought to apply its new Policy on Refugee Protection and Solutions in Urban Areas.

In late 2011, refugees and asylum seekers in Delhi numbered around 22,000, including some 11,000 Afghans, 10,000 Myanmarese, and around 1,000 Somalis and others. Afghans seeking protection have been allowed to enter India over several decades, and, once recognized as refugees by UNHCR, they have been permitted to remain. Many come from urban backgrounds and are relatively well settled, especially the Sikhs and Hindus among them. The Myanmarese, who are mainly ethnic Chin from a rural background, face a wider range of problems—from poverty to discrimination to gender-based violence. Somali refugees encounter additional marginalization and face the greatest difficulties.

While India has no national legislative framework pertaining to refugees, asylum seekers and refugees are in principle protected under Article 21 of India’s Constitution, which upholds the right to life and applies equally to citizens and non-nationals. Refugees and asylum seekers are allowed access to public services, and many are able to find work in the informal sector.

However, without specific legal measures, the overall situation of asylum seekers and refugees in urban areas remains precarious, and they may be affected by acts of racism and xenophobia. Delhi’s Afghan and Myanmarese refugees are able to apply for residence permits, issued at the government’s discretion, for periods of a year or two; but Somalis and other refugee groups are not entitled to apply for them. More broadly, the situation of refugees in Delhi contrasts with that of much larger numbers of Tibetan and Sri Lankan refugees who receive direct protection and assistance from the government in rural areas.

UNHCR’s involvement with refugees in Delhi dates back to 1981, when the agency re-established its presence in India after a five-year absence, and responded to an influx of refugees following the Soviet invasion of Afghanistan in 1979. At that time, UNHCR mainly provided Afghan refugees in the city with a monthly subsistence allowance. Ten years later, the UNHCR programme in Delhi assisted some 26,000 Afghans and 80 per cent of the programme’s budget was spent on subsistence allowances.

The situation changed in 1993, after UNHCR conducted a survey of the Afghan refugees in Delhi to identify those who were—or could become—self-sufficient, and to identify the most vulnerable Afghans for whom continued support was essential. Most long-stayers who were assessed to be self-reliant had their subsidies terminated, a decision that was not received without tensions.

In 1995, India joined UNHCR’s Executive Committee, and in recent years UNHCR has strengthened its cooperation with India, as an important global partner. UNHCR and India have held high-level bilateral consultations since 2008, and the High Commissioner made official visits in 2006 and 2009.

In the absence of national laws on refugee status in India, UNHCR continues to take on the responsibility for determining whether asylum seekers in Delhi qualify for protection as refugees under UNHCR’s mandate. The agency has invested in strengthening the efficiency and quality of its registration, identification, and determination systems. The government respects UNHCR’s decisions, and recognizes the documents it issues to refugees and asylum seekers.

In line with its new urban refugee policy, UNHCR also promotes access for refugees to mainstream public services provided by the government. Despite their entitlement, refugees and asylum seekers in Delhi often find it difficult to use services such as health care and education, without special guidance and language support. UNHCR and its partners encourage primary and secondary schools to accept refugees and asylum seekers, and provide ‘bridge lessons’ and tuition support. Similarly, UNHCR has worked with partners to provide counselling and translation services, in order to enable refugees and asylum seekers to use public health facilities. UNHCR has also established refugee centres in various local communities in Delhi, so that refugees have support services—such as childcare, training, and counselling—in areas where they live.

At the same time, UNHCR advocates on behalf of the refugees with government authorities and civil society organizations. The agency’s efforts to raise awareness among the city’s police, for example, encouraged refugees to turn to law enforcement authorities to intervene with unscrupulous landlords or when faced with other problems.

Given the protracted nature of the conflicts in the refugees’ countries of origin, prospects for voluntary repatriation remain limited, and resettlement is only available for very small numbers. UNHCR has therefore invested in promoting refugee self-reliance, working with partner organizations to support employment programmes, including vocational training and job placement, as well as innovative ‘production centres’ where refugees make clothes and other items for sale.

Self-reliance remains difficult for the refugees who have to vie for jobs in the informal sector along with hundreds of thousands of Indian migrants who move from the countryside to the capital city every year. Refugees tend to earn very low wages that do not cover their basic needs, including the city’s high rent and transport costs. Similarly, retail items produced by refugees have to compete on Delhi’s high-quality low-price market, and refugee entrepreneurs have no official access to credit. Qualified professionals, mainly Somalis and Afghans, have even fewer prospects, since they are not allowed to work in the formal sector.

In Delhi, as elsewhere, implementation of UNHCR’s new policy on protection and assistance for refugees living in urban areas remains a work-in-progress. Offering a formal legal status and work permits for urban refugees would constitute a valuable step forward.

Colombia has one of the most highly developed legal and institutional frameworks for the protection of IDPs. The country’s Constitutional Court has actively promoted this framework through a variety of actions, most notably through a ground-breaking judgment handed down in 2004.

Under the procedure known as ‘acción de tutela’, individuals in Colombia are able to petition the Constitutional Court for the protection of their rights. By the end of 2003, the claims of more than a thousand IDP families had made their way to the country’s highest court.

In view of the magnitude of internal displacement in Colombia—estimated by the government in 2011 at 3.8 million—the potential for individual claims was virtually unlimited, and the Constitutional Court considered that reviewing individual cases was not the most efficient way to address human rights violations. It has therefore focused on promoting state laws and policies that guarantee IDPs the full enjoyment of their rights. The Court’s January 2004 Decision known as T–025/04 exemplifies this ‘structural’ approach.

Decision T–025/04 followed a review of 108 cases which had been grouped together for the Court’s examination. Each case in turn represented numerous IDP families from around the country. These families sought the Court’s action against a wide range of state and municipal authorities, alleging that the authorities had failed in their duty to protect the displaced population, and had not responded effectively to the IDPs’ appeals for material assistance, access to livelihoods, health care, and education, among other services.

In its judgment, the Court held that the IDPs had suffered ‘multiple and continuous’ violations of their human rights, owing to the failure of the competent authorities to address their needs. It found their living conditions to be ‘inhumane’ and their treatment to be ‘unconstitutional’. The Court was particularly attentive to the situation of indigenous and Afro-Colombian communities as well as other vulnerable people such as the elderly, female heads of households, and children. The Court did not attribute the rights violations to any single authority but found that they were the result of structural shortcomings, and ordered the design of policies to remedy the situation and the correction of institutional failures.

As a result of Decision T–025/04, IDP issues are now a core part of the public policy agenda in Colombia. The resources allocated by the central government to respond to the needs of IDPs grew from US$177 million in 2004 to US$950 million in 2011. A system of indicators was established to measure the extent to which IDPs are able to enjoy their rights. Policies were adjusted in numerous sectors, such as health, education, housing, land, and registration. Most recently, in 2011, the government adopted the historic Victims and Land Restitution Law.

When the Court issued its judgment T–025/04 it simultaneously established two new mechanisms to ensure compliance with its orders. The first consists of public hearings, held regularly since June 2005, to assess compliance with T–025/04. These hearings enable the displaced population, national and international NGOs, as well as government officials, the Ombudsman, and UNHCR, among others, to give their views. The second instrument consists of periodic Rulings by the Court giving its assessment of progress in fulfilling the requirements of Decision T–025/04.

One of the structural shortcomings identified by Decision T–025/04 was the absence of specific policies relating to the most vulnerable IDPs. In a Ruling in 2006 (218/06), the Court noted that progress in this respect had been inadequate; from 2008 onward the Court began to issue orders to ensure sufficiently differentiated responses. For example, in its follow-up Ruling 004 of 2009, the Court established special protection for indigenous peoples and warned that at least 35 indigenous groups were in danger of physical and cultural extinction as a result of the impact of conflict and displacement.

Despite the Court’s action and the government’s efforts, UNHCR’s monitoring activities show that the conflict continued to take a heavy toll on indigenous groups. In the first six months of 2011 alone, at least 900 people from groups at risk of extinction were displaced, and 20 killed. The Court has issued specific rulings for the protection of the Awa, Jiw and Hitnu indigenous communities.

A great deal has been achieved for Colombia’s IDPs, but much remains to be done. The Constitutional Court will no doubt be called upon to continue its unique oversight of the government’s response to the country’s. massive internal displacement.

In 2009, African states adopted a pioneering new international instrument on internal displacement. Known as the Kampala Convention, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa continues the continent’s tradition of setting normative standards on forced displacement.

The Convention was approved at the African Union (AU) Summit on forced displacement held in Kampala, Uganda, in October 2009. Forty years earlier in Addis Ababa, the (then) Organization of African Unity had adopted the Convention Governing the Specific Aspects of Refugee Problems in Africa.

The Kampala Convention addresses the full cycle of internal displacement: from prevention to solutions. UNHCR was closely associated with its preparation, helping states and the AU Secretariat to ensure consistency with international standards, especially the 1998 UN Guiding Principles on Internal Displacement. The Convention transforms the issues covered by the Guiding Principles into ‘hard law’ and enlarges the normative framework by incorporating some new provisions.

The Convention sets out the primary responsibility of states to prevent displacement; to protect the human rights of IDPs; and to seek lasting solutions to the problem of displacement. While addressing the protection and assistance needs of IDPs, in particular those who may have specific vulnerabilities, such as women, children, and pastoral communities, the Convention also requires states to take into account the needs of host communities. Signatories must enact implementing legislation and designate an appropriate institutional focal point at the national level.

The Convention covers all aspects of state responsibility toward IDPs. It prohibits arbitrary displacement, requires states to provide protection and assistance to IDPs, promotes lasting solutions, and recognizes the right of IDPs to receive compensation for violations of their rights. It applies to displacement generated by a range of causes, including armed conflict, human rights violations, natural disaster and climate change, and takes a progressive approach in recognizing the responsibility of states to ‘prevent political, social, cultural and economic exclusion and marginalisation, that are likely to cause displacement(…)’. States are required to put in place early warning systems, emergency preparedness and management measures and disaster reduction strategies.

The Convention also covers the obligation of states to ensure the accountability of nonstate actors such as armed groups, multinational companies, private security companies and others for acts of arbitrary displacement or complicity in such acts.

Beyond the responsibility of states, the Convention provides a platform for regional cooperation. One of its objectives is to ‘establish a legal framework for solidarity (…) and mutual support between the States Parties in order to combat displacement and address its consequences.’ The Convention reiterates the right set out in the Constitutive Act of the African Union for the Union to intervene in a member state, pursuant to a decision of the AU Assembly, where genocide, war crimes and crimes against humanity occur.

The Convention explicitly seeks to preserve and expand space for humanitarian action. States Parties must ensure respect for humanitarian principles, including to ‘protect and not attack or otherwise harm’ humanitarian personnel. They are to allow unimpeded access of relief supplies and facilitate the role of local and international humanitarian actors. Where states are not able to provide sufficient protection and assistance to IDPs, they are to cooperate in seeking the assistance of humanitarian agencies and other relevant actors. The Preamble specifically refers to UNHCR’s protection expertise as a source of support.

The obligations set out in the Convention must be translated into domestic laws. In some countries, this will mean extensive legislative reform. Significantly, the Convention requires States Parties to create and maintain an updated register of all IDPs within their jurisdiction, and to issue IDPs with documentation for the exercise of their rights. At the end of 2011, 32 countries had signed the Kampala Convention while eight had deposited their instrument of ratification at the African Union. The Convention enters into force 30 days after the deposit of the 15th instrument of ratification.

Identifying people who are stateless and understanding the causes of their statelessness are prerequisites for resolving the problem in any given country. This is not as easy as it sounds. Most governments are unable to provide accurate information on stateless populations. Only a few have systems in place to determine statelessness and extend an official status to stateless persons. Although UNHCR and other UN agencies frequently carry out registrations of refugees and in some circumstances of internally displaced people, it is not common for them to register stateless persons.

Ways of identifying stateless populations

In recent years, an increasing number of projects have been developed with the explicit purpose of identifying stateless populations and surveying their protection needs. Such ‘mapping’ exercises can be costly and time-consuming and require careful planning. Statistics on stateless persons can be gathered using several different methods, including by analysing birth registration and civil registration data, through population census data, questionnaire-based surveys and approaches based on geographic information systems.

UN guidance on how to conduct population censuses outlines the importance of including questions related to citizenship, including statelessness.i However, the accuracy of the data depends on the reliability of the declarations made by the respondents. Whether someone is stateless or not usually needs to be determined on the basis of the laws and practice of a state, and self-identification may be misleading.

In a census, people may incorrectly identify themselves as stateless for a variety of reasons. For example, a person may not correctly understand the terms ‘stateless person’ and ‘citizen’, or may not know with certainty whether he or she is stateless. Proxy questions linked to the country of birth of the respondent or his or her parents, as well as a range of questions on prior residence, may be useful indicators of the individual’s status and possible causes of statelessness. Such questions may also reveal the nature of links that stateless persons have to their country of residence and to other countries, providing insight into possible solutions through acquisition of nationality on the basis of birth, descent, residence or marriage.

A further challenge is that data gathered through proxy questions or self-identification often requires careful analysis and crosschecking. Determining whether individuals are citizens of a particular state often involves probing the state’s view of the nationality status of particular populations. This may require contacting authorities where the stateless persons reside, or in other countries where they have a link through birth, descent, marriage or former residence. This can be a time consuming and labour intensive process.

Many individuals—including those who may be stateless—intentionally avoid registration or participation in censuses for a variety of reasons. Identification of persons as stateless might expose them to undesired government interference, making them reluctant to participate, for instance in situations where they live as undocumented migrants in a country and risk being detained or expelled if they are identified.

Data on statelessness can also be politically sensitive, in particular where statelessness results from discrimination and/or deprivation of nationality. In such contexts, government authorities may be reluctant to give researchers access to particular populations.

Recognizing the fundamental importance of proper identification of statelessness, UNHCR’s Executive Committee has encouraged UNHCR to gain a better understanding of the nature and scope of this phenomenon, to collaborate with a wide range of partners in this effort, and to improve the way it gathers data on stateless persons.

‘Mapping’ statelessness: some recent experiences

A number of good practices in collecting data on stateless people have emerged from recent mapping exercises. One such example is a survey conducted in Serbia in 2010. Statelessness, or the risk of statelessness, was known to affect the Roma, Ashkali, and Egyptian (RAE) population in the country disproportionately. Due to marginalization and discrimination, as well as lack of information or familiarity with administrative procedures, the Roma do not always register their children’s births, or have other personal documentation. In addition, many have links to more than one country, sometimes making it unclear which country they are nationals of. In such circumstances, many are unable to prove their nationality.

The objectives of the UNHCR-funded survey were to establish the number of persons who are at risk of statelessness because they lack documentation; to identify locations where such persons reside; to assess the awareness among this population of the need for personal identification documents and a nationality; and to identify reasons why individuals do not have personal documents. A key advantage for this survey was that the Government of Serbia already had estimates of the size and location of the affected population. The survey was therefore able to rely on statistical sampling methodology to identify random households to approach with its questionnaire. Extrapolating from the results, the survey concluded that approximately 7 per cent of the RAE population in Serbia, or some 30,000 people, could be stateless or at risk of statelessness. This information has informed UNHCR planning and advocacy for civil documentation programmes to help to confirm nationality for this population.

The mapping of any situation involving statelessness presents challenges. For example, UNESCO has conducted two surveys to assess the prevalence and consequences of statelessness among Hill Tribe peoples of northern Thailand. Although government data on the baseline populations in this region were available and could be used to develop a sampling methodology, there were additional challenges such as language barriers, insecurity in the region, limited infrastructure, and distrust among the population to be surveyed. Nonetheless, the UNESCO research revealed that lack of citizenship is the major risk factor for highland girls and women in Thailand to be trafficked or otherwise exploited, mainly because it poses obstacles to obtaining education and lawful employment.

Other challenges may arise when efforts are made to gather information on stateless persons who are in an irregular situation. In 2010–2011, UNHCR and the NGO Asylum Aid carried out a project to identify the number and profile of stateless persons in the UK. The mapping exercise applied two distinct data collection methods. First, key informants such as immigration lawyers were interviewed to gain a better understanding of challenges faced by stateless persons. Second, the snowball sampling method, a chain-referral system, was used to identify and interview a number of stateless persons, most of whom did not have a legal status in the country. Those interviewed included members of many known stateless populations around the world, such as the bidoon of Kuwait. While the mapping exercise did not yield an accurate estimate of the stateless population in the UK, it highlighted the need for a national procedure to determine the status of stateless persons. The survey also identified protection concerns among this population, and developed policy recommendations.

UNHCR is committed to improving its survey methodologies. Since 2010, UNHCR’s Statelessness Unit and Field Information and Coordination Support Section have been conducting joint training for UNHCR staff and external partners on how to overcome challenges in mapping stateless populations and to set priorities for future projects. A survey by UNHCR of individuals lacking citizenship certificates in Nepal, surveys to identify stateless persons in Central Asian countries, Burundi, Cameroon, and Mozambique, as well as stateless persons in a migratory context in countries such as Belgium, the Netherlands, and the UK, were undertaken in 2011 or underway in 2012.

i ‘Principles and Recommendations for Population and Housing Censuses, Revision 2′, United Nations, New York, 2008.

In January 2011, after decades of civil war, the people of South Sudan voted overwhelmingly for independence from the Republic of Sudan in the north. Six months later, on 9 July 2011, Africa’s newest country was born: the Republic of South Sudan. The path to independence was not an easy one, and throughout the first year of independence, the possibility of renewed armed conflict between north and south was ever-present.

A related concern was that of statelessness. It was feared that, upon independence, tens of thousands or even hundreds of thousands of people living in both countries might suddenly find themselves without a nationality. There were concerns about gaps in the nationality laws of the two Republics, the availability of documentation to prove ancestry and place of birth, and the lack of awareness of the population about nationality issues. Unprecedented efforts were made at the local, national and international levels to prevent a nationality crisis from coinciding with the independence of South Sudan. While the worst-case scenario was effectively avoided, there is a need for continued advocacy and vigilance, as risks remain.

In identifying and addressing potential problems of statelessness, particular attention has focused on the large number of people of South Sudanese origin living in the north. The exact number is not known, but was estimated by the UN in 2011 to be around 700,000. Many had fled the conflict in South Sudan during the long civil war, and had lived for years as displaced persons in the north, especially in the capital Khartoum. Others had migrated to the north for economic reasons, in some cases as long as a century ago.

The risk of statelessness also extended to people from the north living in the south, as well as to those in trans-boundary communities. Regardless of where they were living, many people had effective links to both countries, for instance with one parent originating from the Republic of Sudan and the other from South Sudan. As independence approached, questions loomed large: would either of the two countries claim such individuals as their own? Would the affected population be able to acquire the necessary documents and exercise their nationality in practice?

With these challenges in mind, UNHCR has worked in concert with both governments to avoid widespread statelessness. It provided the nascent Government of South Sudan with technical advice on nationality legislation and cooperated with the former UN Mission in Sudan as well as with the new UN Mission established in South Sudan upon independence. It worked with UNICEF, UN Women, and embassies of interested countries, among other partners, to make sure that the provisions on nationality in the new country’s Constitution and statutory law would comply with international standards. In doing so, it actively promoted the standards contained in the International Law Commission’s Articles on the Nationality of Natural Persons in relation to the Succession of States.i

In June 2011, the Legislative Assembly of South Sudan adopted the country’s first Nationality Act, providing a legal framework for the acquisition and loss of nationality in the newly independent country. In many respects, the Act demonstrated South Sudan’s commitment to a human rights-focused approach to nationality. The new law allows for dual nationality and is gender-neutral, providing inter alia for the equal right of women and men to pass their nationality on to their children. Under the new law, persons of South Sudanese origin living in the Republic of Sudan automatically acquired South Sudanese nationality.

While the nationality law of South Sudan greatly reduced the risk of widespread statelessness, it by no means eliminated it. In August 2011, soon after the independence of South Sudan, the Republic of Sudan amended its own law to provide that people recognized as citizens under the new nationality law of South Sudan would automatically lose their Sudanese nationality.

This change to the nationality law of the Republic of Sudan brought both practical and legal consequences. With the loss of Sudanese nationality, southern Sudanese who had been living in the north, often for decades, lost related rights and entitlements, including the right to own property and to public sector employment, as well as the ability to conduct basic official transactions. If they are not able to acquire documents demonstrating that they have South Sudanese nationality, they will be unable to legalize their status as residents in the Republic of Sudan.

In other words, with the loss of Sudanese nationality, risks of statelessness emerge. What will happen if the Republic of Sudan considers a person to be a citizen of South Sudan, but he or she is unable to show the necessary link under the nationality law of that country? Lack of civil documentation, such as birth certificates or identity papers, is commonplace in both Sudan and South Sudan, making it extremely difficult, if not impossible, to demonstrate that one’s parents, grandparents or great-grandparents were born in the south, a key criterion for acquisition of the nationality of the new state. If individuals lose Sudanese nationality and are unable to prove an entitlement to South Sudanese nationality, they will be stateless.

The international community has therefore recommended that care be taken to make sure that no one loses Sudanese nationality before it is clearly established that he or she has acquired the nationality of South Sudan. UNHCR continues to advocate with both governments to facilitate access to South Sudanese nationality documents for South Sudanese living in Sudan, among other issues. UNHCR is also working with Plan International to improve access to birth registration documents for South Sudanese communities in Sudan. Birth certificates can provide a vital proof of identity and can be used as evidence of entitlement to South Sudanese nationality.

In Khartoum, working with UNICEF, UNHCR has offered advice and support to the civil registration authorities to encourage fair and transparent procedures for the registration of births, confirming Sudanese nationality and issuing nationality documentation. UNHCR is also conducting awareness-raising sessions for community groups, legal aid organizations, and paralegals in areas where large numbers of South Sudanese reside. UNHCR is collaborating with UNDP to ensure that legal aid providers advise South Sudanese populations in Sudan about their nationality status and related rights.

In Juba, the capital of the newly independent South Sudan, UNHCR is providing technical support to the Ministry of Justice, and has assisted the Ministry of Interior to elaborate implementing regulations for the new Nationality Act. Since independence, building the capacity of staff at the recently established South Sudanese General Directorate for Nationality, Passports and Immigration has assumed a particular urgency. UNHCR is also providing technical and financial support to enable the Directorate to organize field missions to areas where large numbers of returnees from the Republic of Sudan are living, in order to provide them with documentation. It is also important to make sure that civil society groups in South Sudan are well informed about the Nationality Act and related legislation.

UNHCR will remain engaged in supporting and monitoring the effective implementation of nationality laws in the Republics of Sudan and South Sudan, and will continue its efforts to reduce the risk of statelessness in both countries.

i International Law Commission, Articles on Nationality: Nationality of Natural Persons in relation to the Succession of States (1999), as annexed to UN General Assembly Resolution A/RES/55/153 of 30 January 2001.

UNHCR’s largest voluntary repatriation programme of the past decade supported the return of over five million Afghans. Despite the political and security changes that led to these massive returns, Afghanistan remains the source of one of the most protracted and complex displacement challenges confronting the international community.

The most complex displacement situation

More than three decades after the Soviet invasion, there were still over 2.6 million Afghans registered as refugees in Iran and Pakistan at end 2011. A similar number of Afghans are believed to migrate irregularly within the region and beyond, primarily in search of work and economic opportunities. Worldwide, Afghans are still one of the largest groups of asylum seekers, and include an alarming proportion of unaccompanied minors. The number of IDPs within Afghanistan was estimated at over 400,000 in 2011.

This situation reveals much about postconflict state-building, the complexity of contemporary population movements, the evolving security situation, and wider trends shaping the environment in which UNHCR and other humanitarian actors will work in the coming years. It suggests that the traditional formulae for resolving protracted refugee situations merit re-appraisal, and new arrangements for managing complex displacement patterns may be required.

Underpinning Afghanistan’s long search for peace and stability are five trends affecting human security in the twenty-first century—demographic growth, climate change, urbanization, migration, and new forms of conflict and violence. These trends represent a formidable challenge for weak states struggling to establish their legitimacy, in the face of adverse political and security conditions. They also threaten to render obsolete an aid model that has long been central to voluntary repatriation as UNHCR’s primary durable solution.

For much of the last 20 years, the paradigm of relief, rehabilitation, and development has underpinned the international community’s approach to post-conflict state-building. Recently, an even more ambitious policy favoured by donor states that integrates diplomacy, defence, and development interventions in support of peacebuilding has emerged.

But experience in Afghanistan suggests that both of these approaches run into difficulties when the local political economy, culture, and traditions are not conducive to modern development practice, with its emphasis on technical and financial support to public institutions. Moreover, military actions have not contributed to overcoming deeprooted political problems, and a formal and inclusive peace agreement remains elusive.

Repatriation and its challenges

Until recently, voluntary repatriation to Afghanistan continued at a relatively high level. Many refugees brought back much needed capital, assets and know-how acquired in exile. But these returns increased the country’s population by an estimated 20 per cent; and the availability of housing, land, and services has rapidly been outpaced by demand. Competition for scarce natural resources has intensified, with frequent disputes between sedentary and pastoral farmers. The predominantly informal economy has provided insufficient employment opportunities for a largely unskilled labour force. Refugees returning from exile, IDPs moving due to the insurgency, and migration from rural areas have increased the population of Afghanistan’s cities well beyond the reach of weak municipal service delivery. By 2006, it had already become clear that the country’s absorptive capacity and public management were under serious strain.

At the end of the decade, reconstruction and development faced an array of political, governance, and security problems. Voluntary repatriation was no longer the positive indicator of Afghanistan’s recovery it had been just a few years earlier. For many former refugees, durable social and economic reintegration and even access to basic services and livelihoods are increasingly difficult to achieve. In parallel, a mix of security, economic and social factors has propelled a rise in (mostly irregular) out-migration. The volume and complexity of these movements have posed very real challenges for governments in the region, as well as for UNHCR, accustomed to looking at population movements through the lens of a legal and operational framework designed for refugees.

Mobility as part of the solution

Mobility, including seasonal cross border movement, has always been a feature of Afghan economic life, even during more stable periods. Over the last 30 years, refugee displacement has generated transnational links in the region and beyond. These have facilitated growth in trade and commercial networks, both formal and informal. Mobility has provided a risk-spreading and coping strategy for Afghan families and individuals through seasonal migration, remittances, and solidarity networks. By their very nature, these approaches depend on frequent crossborder movement and exchange, belying the standard model of asylum and/or permanent settlement in villages of origin upon return. But only modest advances have been made toward putting in place an official policy and legal framework, along with practical measures, to regulate such complex mobility. There has been some progress towards more predictable arrangements to manage the stay of long-term registered refugees. However, finding alternative immigration statuses for them has stumbled over defining their legal rights and administrative procedures. Similar obstacles have hampered bilateral discussions about the management of irregular movements, even though Iran and Pakistan now assert that irregular migrants on their territory outnumber those registered as refugees. At the same time, political instability and the rise of the insurgency in Afghanistan have raised concerns about new protection needs within the refugee population.

The need for a comprehensive approach

Reflections on improving border management, and measures to identify refugees and disentangle them from broader migratory flows, have slowed in this region. Humanitarian concerns over potential displacement within and from Afghanistan and the need to preserve asylum space have again assumed growing importance. The familiar dilemma of maintaining voluntary repatriation to preserve space for refugee protection has re-emerged. But it has acquired sharper ambiguity in the face of deepening instability in Afghanistan and the role of mobility as a response to the economic situation.

Twice in the last two decades Afghanistan has slipped back into conflict after agreements that failed to address underlying political and structural tensions, a pattern seen in many other post-conflict situations. Afghans remain among the largest groups of asylum applicants worldwide, including persons coming directly from Afghanistan as well as from among the Afghan populations in Pakistan and Iran.

As UNHCR enters its fourth decade of delivering protection and assistance to Afghanistan’s refugees and displaced, the need for political action to secure peace and stability remains paramount. In its continuing absence, transition from humanitarian assistance to development and reconstruction will remain an unfulfilled promise, and workable solutions for refugees and displacement will be hard to find.

In a renewed attempt to address this protracted refugee situation, UNHCR and the governments of Afghanistan, Iran and Pakistan embarked in 2011 on a quadripartite consultative process to develop a multi-year, multisector strategy. The Solutions Strategy for Afghan Refugees, to Support Voluntary Repatriation, Sustainable Reintegration and Assistance to Host Countries aims to anchor returnees in Afghanistan with sustainable livelihoods and to preserve protection space in the neighbouring states. A regional multidonor trust fund is being established to draw on diverse expertise and development resources to implement community-based projects.

A sustainable future for people displaced from Afghanistan remains essential to the overall stability of the country. In the meantime, humanitarian and development actors may need to devote more attention to measures which reduce the vulnerability and strengthen the resilience of Afghan refugees, IDPs and returnees, to help them to withstand new stresses and emergencies.