In Search of a Durable Solution to the Syrian Refugee Crisis
On the viability of aligning UNHCR’s durable solutions with hard international law
MA Thesis Public International Law University of Amsterdam (2014-2015) Name: Arja Oomkens
Student number: 5954665 Supervisor: Maarten den Heijer
2 Table of Contents
Introduction ... 2
Focus ... 5
1. UNHCR’s Durable Solutions and The Syrian Refugee Crisis in Turkey ... 7
1.1 Voluntary Repatriation to the country of origin: Syria ... 7
1.2 Resettlement to a third country ... 8
1.3 Local integration in the host state: Turkey ... 8
1.3.1 The Syrian Refugee Crisis in Turkey and Temporary Protection Status ... 9
1.3.2. Eligibility under the TP Regulation ... 9
1.3.3. Permanent Residence and the TP Regulation ... 10
1.3.4. Entitlements of Syrians under the TP Regulation ... 11
2. Local Integration and Legal obligations of Turkey ... 12
2.1 Turkey’s obligations under the Refugee Convention ... 12
2.2 Legal obligations of Turkey and the International Community under the ICESCR ... 13
2.3 The Viability of Local Integration as a Temporary Solution to Syrian Refugees ... 14
2.4 Towards Voluntary Repatriation ... 16
3. Voluntary repatriation as a durable solution to refugeehood ... 17
3.1. UNHCR’s conditions for a voluntary repatriation program ... 17
3.2 Voluntary Repatriation and the Role of Turkey ... 18
3.2.1. The example of Dadaab ... 19
3.3 The Interplay between Local Integration and Voluntary Repatriation ... 20
3.4 The obligation of Syria to cooperate in a voluntary repatriation program ... 20
4. State Responsibility, Reparations, and Voluntary Repatriation ... 22
4.1 Preconditions of State Responsibility: Breaches committed by the Syrian Regime ... 23
4.2 The ARISWA Regime of Aggravated Responsibility ... 24
4.3 Scope and Invocation of the Responsibility of the Syrian regime ... 26
4.4 Access to Justice: The Obligation of Syria to Provide a Remedy to Syrian Refugees ... 29
4.5 Voluntary Repatriation as Redress ... 30
4.6 The Capacity to ensure Reparations and the Lack of an Enforcement Mechanism ... 33
Conclusion ... 35
Bibliography ... 36
3
Introduction
“My children and I are happy that we do not hear the sounds of the shells any more and we feel safe enough here. But what really worries me, as well as other refugees in the camp, is how long we would be staying here. Is Syria going to be liberated soon or in a year or more?”1
The Syrian refugee crisis started in March 2011, when the Arab spring reached Syria. A peaceful local uprising against President Assad broke out and spread across the country. Four years later, more than 210,000 have fallen victim to the violence perpetrated by the Syrian regime, including 10,000 children.2 Over the past few months, violence in Syria has intensified; the NGO Syrian Observatory for Human Rights has documented at least 6,600 deaths during April and May 2015 only. This time the death toll was not at the hands of the Syrian regime, but caused by the Islamic State of Iraq and the Levant (ISIL) when it captured Syria’s historic city of Palmlyra and advanced on the northeastern province of Hasakah.3
With the conflict in Syria entering its fifth year, it has come to epitomize one of the most challenging humanitarian crises of our era. At least 7,6 million Syrians are displaced inside Syria, more than 4 million4 Syrians have crossed international borders to seek refuge in neighboring countries and North Africa, and over 270,000 Syrian refugees have sought asylum in Europe.5 These sheer numbers of Syrian refugees account for the largest outflux of a country’s nationals since the Rwandan genocide 21 years ago.6 For this reason, Syria’s neighboring countries are under great pressure to respond to the mass influx adequately. According to UN estimates, Turkey has received 1,8 million Syrian refugees to date. As a consequence, it has become the world’s largest refugee-hosting country.7 As the numbers of Syrian refugees entering the country continues to increase, and without an end to the conflict in Syria in sight, Turkey faces long-term challenges with regard to the economic and social stability of the country.8 An additional challenge is to adequately address the wellbeing of Syrian refugees: under the circumstances of a long-standing refugee crisis, international protection must go beyond life-saving assistance.9
1 Statement made by a male Syrian refugee in Turkey to an employee of the Waka Waka Foundation [online at 2 Syrian Observatory for Human Rights, Death Toll in Syria Rises to Over 210,000 in Four Years 8-2-2015 [online]. 3 Ibid.
4 UNHCR, Syria Regional Refugee Response 20-7-2015 [online].
5 UNHCR, Total number of Syrian refugees exceeds four million for first time 9-7-2015 [online]. 6 UNHCR, UNHCR chief urges states to maintain open access for fleeing Syrians 16-7-2013 [online]. 7 UNHCR, Syria Regional Refugee Response 20-7-2015 [online].
8 Most Syrian refugees are living in urban areas in the southeast provinces of Turkey, such as Hatay, Gaziantep and Kilis. In host communities, cultural and religious differences between locals and Syrian refugees, combined with mainly economic competition, but also for healthcare, shelter, water, and school placements, are causing serious social tensions, see: Fisher, The inheritance of loss, Forced Migration Review [online]. The violent anti-Syrian protests in the Turkish city Gaziantep in August 2014 have undoubtedly demonstrated that such tensions can easily deteriorate. These protests were triggered by the responsibility of a Syrian tenant for the murder of a Turkish landlord. After the murder, protesters gathered and started shouting anti-Syrian slogans all over the city, attacked Syrians whom they encountered in the streets, destroyed workplaces owned by Syrians, and set cars on fire with Syrian license plates, see: Kutahyali,
Syrian Refugees under attack in Turkey, Al Monitor 17-3-2014 [online]. A few months later, more violent outbreaks against
Syrians have been reported in Turkey, see: BBC, Turkey protest in Istanbul over Syrian refugees, 25-8- 2014 [online]. 9 Betts et al., The State of the World’s Refugees, 2006, p. 106.
4 Therefore, the quest for a durable solution to the plight of Syrian refugees in Turkey becomes imperative. But where lies the responsibility to address such enduring and unprecedented displacement?
In a general sense, the responsibility to provide international protection to refugees and seek permanent solutions for their plight lies with the international community of states. Since the 1950s, this special mandate has been entrusted to the United Nations High Commissioner for Refugees (‘UNHCR’).10 Through its worldwide practice of seeking solutions for refugees, the UNHCR has made noticeable contributions to the development of legal standards.11 Of central importance has been the development of the 2003 framework for durable solutions, an initiative which emphasizes the possibility to prevent destabilization, insecurity, and conflict by means of capacity building to receive and protect refugees, as well as equitable responsibility-sharing amongst states.12 The framework formulates three durable solutions for refugees: local integration, voluntary repatriation, and resettlement. These three solutions are similar in the sense that they include a legal process that brings refugee status to an end; they are all meant to be permanent solutions to refugeehood. Yet, the solutions focus on different parties concerned in a refugee crisis. Firstly, local integration is linked to host states. It is a process in which refugees are progressively granted a wider range of entitlements by the host state, commensurate to that of its citizens, until the process leads to either permanent residence rights or the acquisition of citizenship in the host country.13 Secondly, voluntary repatriation involves the home country of refugees as it is based on the fundamental right to return to one’s country of origin. Voluntary repatriation involves the reacquisition of citizenship through a full restoration of national protection.14 Thirdly, resettlement concerns a transfer to a safe third state. Under the auspices of the UNHCR, resettlement involves a process in which the most vulnerable refugees are selected and transferred from the state in which they have first sought protection to a third state that has agreed to admit them - as refugees - with permanent residence status.15 Fundamental to UNHCR’s framework is the recognition that key to achieving durable solutions is the cooperation between countries of origin, host states, UNHCR and its partners as well as refugees and their host communities.16 Unfortunately, there is no clear-cut obligation for states to
10 Article 1 of the UNHCR Statute reads: ‘The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees by assisting governments and, subject to the approval of the government concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities’, UNHCR Statute, para. 1.
11 Goodwin-Gill & McAdam, The Refugee in International law, 2007 p. 4.
12 Core Group on Durable Solutions, Framework for Durable Solutions, UNHCR 2003/5, p. 4. 13 Ibid, p. 5.
14 Ibid, p. 20; UNHCR, Handbook for Repatriation and Reintegration Activities, 2004/5, p. 2 [online].
15 Core Group on Durable Solutions (n12), p. 6; UNHCR, Frequently Asked Questions about resettlement, 2012/4, p. 1 [online].
5 cooperate since neither general international law nor treaty obliges states to grant durable solutions. Cooperation with UNHCR in their effort to find a durable solution for refugees thus remains a matter of political discretion.
Focus
For the aforementioned reason, this thesis is devoted to seeking an alternative legal framework to examine the ways in which UNHCR’s durable solutions can be considered hard international law. Because this will be analyzed in light of the Syrian refugee crisis, this thesis first examines the extent to which UNHCR’s durable solutions are currently available to Syrians who have sought refuge in Turkey. After concluding that voluntary repatriation and resettlement are currently not within reach of the greater part of Syrians, an in-depth analysis follows on the extent to which local integration is available to Syrians residing in Turkey. It will be argued that Syrians do not have access to local integration as a permanent solution, but their wellbeing is still (temporarily) addressed by the 2013 Law on Foreigners and International Protection (LFIP) and the 2014 Temporary Protection (TP) Regulation. It will even be found that the TP regulation is commensurate to that of the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’), meaning that the TP regulation promises the protection and socio-economic wellbeing of Syrians living in host communities. However, this promise has not been effectuated yet as the TP regulation has not been implemented, meaning Syrians momentarily do not have access to socio-economic rights.
Therefore, the second chapter analyzes whether a legal framework can be formulated by which local integration can be formulated as a hard international obligation of Turkey. After examining Turkey’s international obligations under the Refugee Convention and the 1966 International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), it will be indicated that it is not possible to consider local integration as a hard international obligation of Turkey, mainly because their state obligations under the Refugee Convention are confined to European refugees.17
Yet, even if local integration in Turkey cannot be aligned with hard international law, this does not mean that there is no durable solution to the plight of Syrians in Turkey. Under the circumstances of a restored peace in Syria, voluntary repatriation as a durable solution will become a viable option. In this regard, the third chapter will highlight the importance of Turkey’s TP regulation for a prospective voluntary repatriation program of Syrians to their home country. It will be argued that prior access to socio-economic rights in Turkey (through implementation of
17 Article 1B(1)(a) of the Refugee Convention provides contracting States with the option to limit their obligations under the Refugee Convention to individuals fleeing from Europe. These limitations were lifted with the establishment of the 1967 Protocol. However, as states could retain the geographical limitation to the Refugee Convention, and because the Turkish authorities decided to do so, only persons fleeing from European countries may be eligible for refugee status in Turkey.
6 the TP Regulation) will be beneficial for the voluntary repatriation of Syrians. Furthermore, in the fourth chapter, against the backdrop of the rights regime of the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ARISWA’), it will be argued that Syria has an international obligation to provide reparations to its returning nationals. Moreover, an examination of the conditions for reparations as established in the 2006 General Assembly Resolution named The Basic Principles and Guidelines Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (‘Resolution’) compared to the UNHCR’s conditions for a voluntary repatriation program will indicate that any prospective voluntary repatriation program for Syrians will by a mandatory exercise for their home country.
7
1. UNHCR’s Durable Solutions and The Syrian Refugee Crisis in Turkey
Before seeking an alternative legal framework to examine the ways in which UNHCR’s durable solutions can be considered hard international law, it is of central importance to know to what extent these durable solutions are currently within reach of Syrian refugees in Turkey. In other words, an analysis of their availability will indicate the relevance of aligning durable solutions with binding international legal instruments.
1.1 Voluntary Repatriation to the country of origin: Syria
At this moment, voluntary repatriation to Syria cannot be considered an option. First of all, from a legal point of view, involuntary repatriation would in practice amount to a violation of the prohibition of non-refoulement.18 That is, Syrians who have fled to Turkey because of a lack of protection and fear of persecution in their own country are internationally protected against forced return. In this sense, Syrian refugees have by definition become unrepatriable.19 Second of all, even though UNHCR may promote and facilitate voluntary repatriation,20 it is currently implausible that any Syrian refugee will voluntarily decide to repatriate. The main reason being of course that the violent circumstances that forced their flight have not ceased to exist. Furthermore, as current influx patterns into Turkey indicate,21 violence in Syria has even worsened. Therefore, even the promotion of voluntary repatriation is presently not an option; UNHCR can only focus on providing Syrian Refugees with international protection in Turkey.22
Even though voluntary repatriation as a durable solution to the Syrian refugee crisis is not an available option at this moment, this may change once Syria has become safe. As voluntary repatriation indeed may be the most viable durable solution for Syrian refugees under the circumstances of a restored peace, the last chapters of this thesis analyze whether a prospective voluntary repatriation program can be aligned with hard international law.
18 The principle of non-refoulement is legally binding upon Turkey under Forced return to Syria would amount to a violation by Turkey of the prohibition on non-refoulement, by virtue of Turkey’s treaty obligations under article 4 of the International Covenant on Civil and Political Rights (ICCPR), article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), article 1 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
19 See: Zieck, Voluntary Repatriation: Paradigm, Progress, Pitfalls, Ref.Sur.Q. 2004/3. 20 UNHCR, Handbook on Voluntary Repatriation, 1996 [online].
21 See section 4.1.
22 Syrian refugees unequivocally fall under the competence of the UNHCR to provide international protection: ‘The High Commissioner’s core mandate covers refugees, that is, all persons outside their country of origin for reasons of feared persecution, conflict, generalized violence, or other circumstances that have seriously disturbed public order and who, as a result, require international protection’, see: UN doc. A/AC.96/830, 7 September 1994, paras. 8, 10-11, 31-32.
8 1.2 Resettlement to a third country
As indicated earlier, resettlement is not a right, which essentially means that there is no international legal obligation on states to accept refugees for resettlement.23 This thesis does not focus on aligning resettlement with hard international law, simply because such an alignment is impossible to attain. States may, on their own terms, decide to institutionalize a legal and policy framework including legislation providing a secure legal status for resettled refugees, and access to fundamental civil, political, economic, social and cultural rights, including the prospect of acquiring citizenship.24 Yet, it is currently impossible to understand this discretion as an international legal obligation.
Furthermore, in considering the importance of resettlement as a durable solution to the Syrian refugee crisis, it is essential to note that this practice does not address the needs of the greater part of Syrian refugees. Resettlement remains an exception to the rule: out of the 10,5 million refugees that fall under the protection of UNHCR worldwide, only 1 percent are submitted by the UNHCR for resettlement.25 More specific to the Syrian refugee crisis: out of the 4 million persons of concern registered with UNHCR, only 87,442 have been resettled to date.26 This is a meager 2 percent: the greater part of Syrian refugees resides in Syria’s neighboring countries, of which 1,8 million in Turkey. Evidently, in search of a durable solution to the present crisis, the focus must be on the places where most refugees actually are. To quote refugee lawyer James Hathaway: ‘I
t
makes sense more fairly to apportion resourcesin
relation to relative need, and to require much more funding to be directed towards protecting refugeesin
the less developed world’.271.3 Local integration in the host state: Turkey
Even though Turkey is not a developing country, the mass influx of Syrian refugees has put pressure on their economic and social stability, and therefore their capacity to receive and protect the wellbeing of refugees. Bearing in mind that the conflict in Syria will, in all likelihood, not abate soon, local integration currently translates as being the most viable solution to the greater part of Syrian refugees. Therefore, international funding must be apportioned to the formulation of a local integration program in Turkey. However, for the international community to provide funding assistance, the Turkish government must also consent to institutionalize a legal system by which all Syrians in Turkey can acquire permanent residence rights. To indicate the level of preparedness of Turkey to grant (permanent) residence rights to Syrians on their territory, this
23 UNHCR, Frequently Asked Questions about resettlement (n15), 6. 24 Ibid.
25 UNHCR, Resettlement, [online].
26 UNHCR, Resettlement and Other Forms of Admission for Syrian Refugees 29-6-2015 [online]. 27 Hathaway, Why Refugee Law Still Matters, Melb. J. Int’l L 2007/1, p .93.
9 section indicates to what extent local integration, as a permanent solution to refugeehood, has been made available to Syrians. The following subsections therefore analyze the legal status of Syrian refugees in Turkey since the beginning of the Syrian conflict until today.
1.3.1 The Syrian Refugee Crisis in Turkey and Temporary Protection Status
From the onset of the Syrian conflict in 2011, temporary protection was granted to Syrian refugees on the basis of political discretion.28 The authorities did not deem a legal domestic basis for temporary protection necessary since they considered Syrians to be ‘guests’ who would be able to return to their home country as soon as the conflict in Syria ended.29 For this reason, the possibility of a long-standing refugee situation was ignored and focus solely went out to providing aid and relief to refugees in camps. However, in the beginning of 2013, the refugee influx from Syria increased as the conditions of the conflict in Syria worsened. Near the end of 2013, approximately half of the Syrians in Turkey had to reside outside the refugee camps, and by the end of 2014 almost four out of five refugees sought shelter in towns and cities in the southeast provinces of Turkey.30 In light of this unanticipated mass influx of Syrian refugees into Turkey, the Turkish government was pressured to clarify the legal status of Syrians under the temporary protection regime.31 Therefore, in 2013, temporary protection became a legal status linked to ‘mass influx situations’32, and has been governed ever since by the 2013 Law on Foreigners and International Protection (LFIP).33 Because the LFIP does not specify the entitlements and safeguards of temporary protection beneficiaries, but redirects the duty to determine these rights to the Council of Ministers,34 the Council of Ministers also issued a Temporary Protection (TP) Regulation, which entered into force on 22 October 2014.
1.3.2. Eligibility under the TP Regulation
All Syrians in Turkey are eligible for temporary protection status under the TP Regulation. The interim provision of the TP Regulation includes highly detailed eligibility criteria to specifically address the Syrian refugee crisis:
28 UNHCR, 2014 Syria Regional Response Plan [online].
29 Özden, Syrian Refugees in Turkey, Migration Policy Center 2013/5, p. 5 [online].
30 Republic of Turkey, Prime Ministry, Disaster and Emergency Management Presidency (AFAD) Population Influx from Syria to Turkey, 2014 [online].
31 The Turkish government was pressured by NGOs to issue formal legislation that would define the ‘temporary protection status’ for Syrians, see: İçduygu, Syrian refugees in Turkey, Migration Policy Institute 2015/4, p. 6. 32 To specifically address the great numbers of Syrian refugees fleeing into Turkey since the beginning of the Syrian civil war, the Turkish authorities established a temporary protection regime applicable under the circumstances of a ‘mass influx situation’, see, 2013 Law on Foreigners and International Protection (LFIP), art. 91(1), text is available (in a non-official translation) via [www.goc.gov.tr/files/files/eng_minikanun_5_son.pdf, accessed on 5-7-2015]. 33 The LFIP replaced the1994 Asylum Regulation on the procedures and principles related to population movements and aliens arriving in Turkey either as individuals or in groups wishing to seek asylum either from Turkey or requesting residence permits in order to seek asylum from another country (1994 Asylum Regulation).
10 “The citizens of the Syrian Arab Republic, stateless persons and refugees who have arrived at or crossed our borders coming from Syrian Arab Republic as part of a mass influx or individually for temporary protection purposes due to the events that have taken place in Syrian Arab Republic since 28 April 2011 shall be covered under temporary protection (…).”35
Even though the TP Regulation clarifies that Syrians fleeing from the brutalities in their home country are eligible for temporary protection, it must be borne in mind that this definition has not been implemented yet. In other words, official (legal) eligibility for temporary protection status is subject to implementation of the TP Regulation. For its implementation, supplementary arrangements must be put into force by ‘relevant public institutions and organizations upon receiving the opinion of the Ministry [of Interior] within three months.’36 Until today, no such arrangements have been enforced. Even though it must be recognized that the Turkish government has made great progress towards the codification of eligibility requirements for temporary protection status, there is room for improvement and legal clarification.
1.3.3. Permanent Residence and the TP Regulation
To indicate the level of local integration (as a permanent solution) available to Syrians residing in Turkey it is of central importance to note that temporary protection status cannot lead to either permanent residence rights or the acquisition of Turkish citizenship. Article 25 of the TP Regulation states that the temporary protection identification document ‘shall not grant the right for transition to a long term residence permit (…) and shall not entitle its holder to apply for Turkish citizenship’.37 Even though the TP Regulation does not set a maximum time limit for the temporary protection of Syrians, article 25 emphasizes that Syrians who have sought refuge in Turkey as a result of the Syrian conflict will not be able to stay indefinitely. It is thus unclear when temporary protection will end. However, if the Turkish government keeps to its obligations under the prohibition on non-refoulement,38 temporary protection in all likelihood will end once peace has been restored in Syria.39
In the meantime, local integration may still be available to Syrians in Turkey, albeit not as a permanent solution. If Syrians have access to a wide range of entitlements commensurate to that of Turkish citizens under the TP Regulation, this indicates the consent of the government of Turkey to address the Syrian refugee crisis. Hence, as local integration would partly be available, the wellbeing of Syrians in Turkey would be taken into account until the conflict in Syria ends
35 TP Regulation, provisional article 1(1).
36 Ibid., art 58(1). Under art 103(1) LFIP, the General Directorate of Migration Management is pointed out to implement and coordinate the provisions under the TP Regulation.
37 TP Regulation, art 25(1).
38 The principle of non-refoulement is legally binding upon Turkey under art. 3(1) of the CAT, art. 7 of the ICCPR, and art. 45 of the Fourth Geneva Convention.
39 The last part of this thesis examines the possibility of voluntary repatriation to Syria for Syrian refugees once peace has been restored, and Syria’s international obligation to ensure that voluntary repatriation will occurs in safety and dignity.
11 1.3.4. Entitlements of Syrians under the TP Regulation
The TP Regulation indicates that the Turkish authorities no longer view Syrian refugees as ‘guests’ who will be returning back to their home country soon. Instead, the TP Regulation illustrates that the Turkish authorities recognize the long-standing situation of the Syrian refugee crisis, and that they are willing to improve the protection regime. This follows from the comprehensiveness of the TP regulation, which provides legal procedures for registration and documentation,40 permits a lawful stay in Turkey,41 qualifies governorates to issue TP identification documents to those whose registration proceedings are completed,42 and grants access (within resources) to social services such as food, accommodation, health, social assistance, and education, to those staying in temporary accommodation centers,43 as well as to those staying in urban areas.44
Even though the former aspects of the TP Regulation already include a wider range of entitlements for Syrians (commensurate to that of its citizens), the most prominent condition for local integration under the TP Regulation is the fact it also provides Syrians access to the labor market.45 Persons who have obtained the temporary protection identification document can apply to the Ministry of Labor and Social Security for a work permit within certain sectors, professions or geographical areas46 for the duration of temporary protection status.47 In accordance with the LFIP, the provisions of the TP Regulation must be implemented and coordinated by the General Directorate of Migration Management.48
In light of these remarkable achievements improving the legal status of Syrian refugees in Turkey, it becomes of interest to examine to what extent the legal promises of the TP Regulation have been effectively coordinated and implemented by the General Directorate of Migration Management. In a recent study by Ahmet İçduygu, a researcher for the Migration Policy Institute, it was found that there have been gaps in management of the crisis on the ground. Because most technical and financial capacity has been devoted to the institutionalization of the General Directorate of Migration Management, the on the ground management has not been taken into account yet.49 Furthermore, it has been impossible to date to gain official and exact numbers on the effectiveness of the right to work, education, or social assistance under the TP Regulation, since the Turkish authorities have not released any documents on this matter. The only fact that is publicly available is that the TP Regulation does not ensure an unequivocal and
40 TP Regulation, art. 21. 41 Ibid, art. 25.
42 Ibid, art. 22(1).
43 Ibid, arts. 38(1) and 26(1). 44 Ibid, arts. 38(2) and 26(1). 45 Ibid., arts. 26 and 29. 46 Ibid., art. 29(2). 47 Ibid., art. 29(4). 48 LFIP, art. 103(1).
12 unlimited right to work, education, or social assistance for Syrians falling under the temporary protection regime. Article 26 indicates that TP beneficiaries “may be provided with health, education, access to labor market, social assistance, interpretation and similar services” (emphasis added). In addition, the right to work, for example, is not effective yet because the Council of Ministers still has to determine the principles and procedures regarding the employment of Syrians falling under the TP Regulation.50 The Council of Ministers can thus decide whether the right to work, or essentially work permits, will be granted or not. Overall, mismanagement on the ground can be explained by the fact that without any legal clarification of the TP Regulation, there is no effective right to work, education, or social assistance for Syrians falling under the temporary protection regime.
Thus, even though the TP Regulation shows remarkable progress towards addressing the Syrian refugee crisis in Turkey, it currently is neither a permanent solution nor a temporary one. Without legal clarification of the TP Regulation, the wellbeing of Syrians remains insecure, as most of them try to survive in the urban areas of Turkey’s southeast provinces, and cannot acquire rights commensurate to that of Turkish citizens. Therefore, it is useful to examine whether Turkey is under an international obligation to accord local integration to Syrian refugees.
2. Local Integration and Legal obligations of Turkey
2.1 Turkey’s obligations under the Refugee ConventionTurkey is a State party to the Refugee Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol (1967 Protocol). The Refugee Convention defines who is a refugee and includes rights regarding refugee protection, autonomy, and self-reliance. It has been signed and ratified by 145 states, which concomitantly must be ensured by State parties to the Convention.51 Article 34 of the Refugee Convention indicates that ‘the contracting states shall as far as possible facilitate the assimilation and naturalization of refugees (…) they shall make every effort to expedite naturalization proceedings’.52 The late professor and refugee lawyer Atle Grahl-Madsen contended that article 34 laid down the ‘foundations, or stepping stones, so that refugees may familiarize themselves with the language of the country of reception, its customs and way of life (…)’.53 Grahl-Madsen emphasized the importance of language courses, vocational adaptation courses, lectures on national institutions and social pattern, and above all stimulation of social contacts between refugees and the indigenous population for the purposes of ‘assimilation’.54
50 TP Regulation, art. 29(1).
51 Hathaway, Why Refugee Law Still Matters (n28), p. 103. 52 Article 34 Refugee Convention.
53 Grahl Madsen, Commentary, Art. 34, 1997, III. 54 Ibid.
13 ‘Assimilation’ does not necessarily mean ‘naturalization’ since Article 34 does not compel a State Party to the Refugee Convention to grant individuals its nationality.55 Nevertheless, it is predicated on a recognition that a refugee must at some point benefit from a ‘series of privileges, including political rights’.56 Since article 34 is an obligation that overtly aligns with the conditions for local integration, it is essential to discuss whether this obligation also extends to Syrians in Turkey.
This obligation of Turkey under the Refugee Convention does not extend to Syrian refugees. This has to do with the definition of a refugee under the Refugee Convention. The definition of a refugee has both a temporal and a geographical limitation. Respectively, article 1A of the Refugee Convention limits its scope to refugees who have fled their countries “as a result of events occurring before 1 January 1951”, and article 1B(1)(a) provides contracting States with the option to limit their obligations under the Refugee Convention to individuals fleeing from Europe. These limitations were lifted with the establishment of the 1967 Protocol. However, because states could retain the geographical limitation to the Refugee Convention, and because the Turkish authorities decided to do so, only persons fleeing from European countries may be eligible for refugee status in Turkey. Consequently, non-European refugees (including Syrian refugees) seeking protection in Turkey are not eligible for refugee status and cannot expect the rights assigned to refugees under the Refugee Convention.
Thus, even though article 34 of the Refugee Convention indicates that state parties are expected to make every effort to expedite naturalization proceedings towards refugees, Turkey is under no obligation to grant permanent resident rights to Syrians who have sought refuge in their country.
2.2 Legal obligations of Turkey and the International Community under the ICESCR
Even though Turkey recognizes the right to work for Syrian refugees under the TP Regulation, this right has not been implemented yet. As a state party to the 1966 International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), the implementation of the right to work (including full access to the labor market) can be understood an international legal obligation of Turkey.
Article 6 ICESCR pertains to the right to work, which includes ‘the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right’. At this moment, Turkey has not yet taken the
55 Ad Hoc Committee on Statelessness and Related Problems, UN Doc. E/AC.32/2 Annex (1950), p. 50. 56 Hathaway, The Rights of Refugees under International Law, 2005, p. 981.
14 appropriate steps to safeguard the right to work, in all probability because they reap the benefits of unregistered labor.57 However, as a state party to the ICESCR they are under an obligation to,
‘[T]ake steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of their available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means […]’.58
Under the ICESCR, developing countries are granted a wide discretion with regard to the guarantee of economic rights under the Convention to non-nationals.59 Even though Turkey is not a developing country, they have generously provided aid assistance to Syrian refugees and could legitimately claim that without international assistance they cannot guarantee economic self-reliance to Syrian refugees. The Turkish authorities may claim that they have reached the maximum of their available resources.60 For this reason, it must again be stressed that, in order for Turkey to progressively realize the right to work, this responsibility must be shared with the international community of States. Yet, since the ICESCR does not clarify what ‘international assistance’ under article 2 entails, it does not concretely oblige other states to become involved.
What consequently must be concluded is that the wellbeing of Syrians in Turkey remains unsure. Turkey and the international community are under no obligation to grant the right to work or other aspects of local integration to Syrians residing on their territory.
2.3 The Viability of Local Integration as a Temporary Solution to Syrian Refugees
Turkey is under no obligation to grant local integration (commensurate to the acquisition of citizenship) to Syrians who have sought refuge in their country. Yet, certain provisions under the TP Regulation, such as access to the labor market, are still a step in the right direction towards addressing the wellbeing and protection of Syrians. This section provides two reasons to indicate that the establishment of the TP Regulation is an improvement with regard to the legal protection of Syrians. First, the socio-economic rights taken up in the TP Regulation are comparable to UNHCR’s notion of local integration. Second, the TP Regulation is to a certain extent similar to that of the rights regime under the Refugee Convention. It will therefore be argued that even though the TP Regulation does not offer a permanent solution, it can be
57 According to Şenay Özden, a researcher for Migration Policy Center, the status quo is that employers prefer employing Syrians instead of local workers because they are cheaper. During an interview conducted by Özden, one of the factory owners stated: ‘Thanks to Bashar al Assad, we now have cheap labor’. In the concluding remarks of her research, Özden emphasized that ‘not only are the Turkish authorities not taking any precautions against the exploitation of refugee labor, they are actually indirectly encouraging it’. See for more information: Şenay Özden, Syrian Refugees in
Turkey (n30), p. 8.
58 International Covenant on Economic, Social and Cultural Rights (ICESCR), art. 2(1). 59 Ibid., art. 2(3).
60 Turkey has spent more than US$6 billion on assistance to refugees. The fact that the international community has covered a mere 3 percent of this total sum demonstrates that international support has been lacking, see for more information: İçduygu, Syrian refugees in Turkey (n32).
15 considered to promise a temporary one as it contains some of the main aspects of local integration.
The socio-economic rights under the TP Regulation are similar to UNHCR’s notion of local integration. The UNHCR characterizes local integration as a process that is threefold: it occurs on a legal, economic, and socio-cultural level. On a legal level, local integration implies that the rights of refugees in the host state are improved. The economic level pertains to the establishment of sustainable livelihoods, self-reliance and a standard of living that is comparable to the host community. The third level includes a socio-cultural process of adaptation to the host community in which the refugees are recognized as part of the host country’s social life without fear of discrimination.61 UNHCR emphasizes economic self-reliance to be of central importance for the safety and dignity of refugees. Various scholars and development practitioners have pointed out the advantages of allowing refugees access to formal employment and sustainable livelihoods, as this is crucial for the human dignity and long-term protection of refugees. In the UNHCR Handbook for Self-Reliance (2005), self-reliance is defined as,
The social and economic ability of an individual, a household or a community to meet essential needs (including protection, food, water, shelter, personal safety, health and education) in a sustainable manner and with dignity. Self-reliance, as a programme approach, refers to developing and strengthening livelihoods of persons of concern, and reducing their vulnerability and long-term reliance on humanitarian/external assistance.62
Effective self-reliance thus takes into account socio-economic rights of refugees.63 Instead of enforcing passivity and vulnerability, refugees who find themselves in an enabling environment will have the possibility to regain their autonomy and dignity. In case of Turkey, the legal level of local integration has been addressed to the extent that the TP Regulation includes provisions on access to health, education, and the labor market. This may also be an economic improvement, as it would allow Syrians to establish sustainable livelihoods, and become self-reliant. On the same note, access to health, education, and the labor market can be a socio-cultural improvement as it allows Syrians to adapt their standard of living to the host community. While awaiting effective implementation of the TP Regulation, it must be noted that these aspects of local integration will ensure the autonomy and dignity of Syrians in Turkey. These socio-economic provisions under the TP Regulation therefore promise a temporary legal solution.
In addition, the TP Regulation is also an improvement in the sense that it promises a similar rights regime to Syrians with temporary protection status as to refugees that do fall under the legal regime of the Refugee Convention in Turkey. Namely, under the Refugee Convention,
61 Crisp, The local integration and local settlement of refugees, 2004, p. 1. 62 UNHCR, The Handbook for Self-Reliance, 2005, p. 1 [online].
63 For State Parties to the Refugee Convention, there is a general obligation to ensure self-reliance to refugees that are qualified as ‘lawfully staying’: The right to work (art. 17), social security (art. 24), public relief (art. 23), housing (art. 21) and travel documents (art. 28).
16 refugees lawfully staying in the host country must be accorded the right to social security,64 the right to engage in wage-earning employment,65 and must be provided with access to (public) elementary education.66 These provisions are similar because the TP Regulation also combines the permission for a lawful stay in Turkey67 with access to social services, including health, education and the labor market. However, what is different is that the aforementioned articles of the Refugee Convention all emphasize that host states shall accord to refugees the same treatment as is accorded to the host state’s nationals, whereas the TP Regulation does not do so. Nevertheless, the similarities between the socio-economic rights taken up in these two instruments show that the TP Regulation is a legal improvement for the wellbeing and protection of Syrians in Turkey. It however remains up to the discretion of Turkey to effectively implement the TP Regulation in order to accord local integration as a temporary legal answer to the Syrian refugee crisis.
2.4 Towards Voluntary Repatriation
Overall, it must be concluded that even if local integration in Turkey cannot be aligned with hard international law, this does not mean that there is no legal solution to the plight of Syrians in Turkey. At the moment, the TP Regulation may (if implemented) function as a temporary solution to the plight of Syrian refugees. Furthermore, under the circumstances of a restored peace in Syria, voluntary repatriation as a durable solution will become a viable option.
Accordingly, the following chapters address UNHCR’s conditions for a voluntary repatriation program, Turkey’s discretion and role to play in fulfilling these conditions, and the international legal obligations any successor government of Syria will have vis-à-vis its returning nationals. With regard to Turkey’s role, the third chapter highlights that when the conflict in Syria ends, prior access to socio-economic rights in Turkey (through implementation of the TP Regulation) will be beneficial for the voluntary repatriation of Syrians. Furthermore, in the fourth chapter, against the backdrop of the rights regime of the ARISWA, it will be argued that Syria has an international obligation to provide reparations to its returning nationals. Furthermore, an examination of the conditions for reparations (as established in the 2006 Resolution by the General Assembly)68 compared to the UNHCR’s conditions for a voluntary repatriation program will indicate that any prospective voluntary repatriation program for Syrians will by a mandatory exercise for their home country.
64 Refugee Convention, art. 24(1)(b). 65 Ibid art. 17.
66 Ibid art. 22. 67 Ibid art. 25.
68 2006 General Assembly Resolution on The Basic Principles and Guidelines Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (‘Resolution’).
17
3. Voluntary repatriation as a durable solution to refugeehood
3.1. UNHCR’s conditions for a voluntary repatriation program
The UNHCR observes ‘voluntary repatriation’ to be based on the fundamental right to return to one’s country of origin, and requires the practice to occur in ‘safety and dignity’ for it to be a durable solution to refugeehood. In UNHCR’s Handbook on Voluntary Repatriation, ‘safety’ is regarded as ‘legal safety’ and must, include amnesties, or mechanisms to redress human rights abuses, public assurances of personal safety, non-discrimination, freedom from fear of persecution or punishment upon return, and the ability to persevere sustainable livelihoods through access to basic services (shelter, water, health and education) and access to employment opportunities.69 ‘Dignity’ means that refugees who choose to return ‘are not arbitrarily separated from family members and that they are treated with respect and full acceptance by their national authorities, including the full restoration of their rights’.70
In short, ‘voluntary repatriation’ is defined as the restoration of national protection, and the return into a stable situation that allows for adequate reintegration.71 In accordance with UNHCR requirements, adequate reintegration means that differences in legal rights and duties between returnees and their fellow citizens must disappear. Reintegration in the country of origin must therefore be focused on the returnees’ full enjoyment of universal political, civil, economic, social and cultural rights. Consequently, reintegration becomes a collective responsibility, including the UNHCR and other humanitarian agencies, under the authority of the government.72 Only when these requirements have been met, does UNHCR recognize a durable solution to refugeehood to have been reached.73
Among the three durable solutions promoted by UNHCR, ‘voluntary repatriation’ is recognized both in principle and in state practice to be the preferred and most pertinent solution to a refugee crisis.74 This is directly related to the fact that free and voluntary return to one’s country of origin is the solution of choice for the greater part of refugees. Consequently, voluntary repatriation may indeed be the ideal solution for refugees if correctly accomplished: this is dependent on whether the option is presented as something ‘which may legitimately be refused, and whether it will also turn out to be the voluntary return it purports to be (in lieu of a safe and dignified return)’.75 However, even if voluntary repatriation is deemed the most ideal solution, it is no legally binding standard under international refugee law. Instead, voluntary repatriation is governed by ‘special agreements’ concluded by the country of origin, the country
69 UNHCR, Handbook for Repatriation and Reintegration Activities (n14), p. 2. 70 UNHCR, Handbook on Voluntary Repatriation (n21), p. 63.
71 UNHCR, Handbook for Repatriation and Reintegration Activities (n14), p. 2. 72 Ibid, p. 5.
73 Ibid.
74 See: Conclusion on Voluntary Repatriation, UNHCR ExCom, No. 40 (XXIX) (1985); Conclusion on Voluntary Repatriation, UNHCR ExCom, No. 18 (XXXI) (1980).
18 of refuge and the UNHCR. These agreements usually allow the UNHCR to employ a supervisory role in the context of voluntary repatriation.76 States, however, have never accepted a general obligation to accord voluntary repatriation as a right to refugees.
3.2 Voluntary Repatriation and the Role of Turkey
Turkey’s participation in a voluntary repatriation program initiated by UNHCR is a discretionary matter. Even though the Turkish authorities seem to recognize the long-lasting situation of Syrian refugees, the lack of implementation of the TP Regulation limits the accessibility of local integration and self-reliance. Temporary protection status may therefore directly signify the idea that Syrian refugees at a certain point will be able to repatriate home. By limiting the potential of local integration and self-reliance, Turkey may perceive a greater chance to promote repatriation once peace has been restored in Syria.77
Nevertheless, the opposite has proven true. Instead of remaining permanently in the country of refuge, refugees who are self-reliant and have,
‘[B]enefited from education, skills training and livelihood opportunities during their time as refugees, and who have been able to attain a degree of self-reliance while living in a country of asylum retain their hope in the future and are better placed to create and take advantage of new economic opportunities after their return’.78
In this sense, it may be argued that a voluntary repatriation program under the circumstances of a restored peace will be easier when Syrians have been self-reliant and have maintained to build upon skills and sustainable livelihoods.
In this regard, it must be noted that the implementation of the TP Regulation will affect the ability of Syrians residing in Turkey to repatriate once the conflict in their home country ends. Therefore, even though it is up to Turkey to decide on forms of repatriation under the circumstances of a restored peace in Syria, it may be better to focus on uncomplicated ways of facilitating a repatriation program. That is, repatriation of refugees becomes effortless for the host state when it occurs voluntarily. Thus, as long as host states guarantee living conditions to refugees that encourage autonomy and self-reliance, the likelihood of voluntary repatriation increases; and thereby its durability.
76 Special agreements are concluded on the basis of provision 8 (b) UNHCR Statute. See for more information: Zieck, Executory and Transitory Provisions, in: The 1951 Convention, 2011, p. 1481.
77 A similar argument can be found in: Hunther, The Failure of Self-Reliance in Refugee Settlements, POLIS Journal 2009/2, p.6 [online].
19 3.2.1. The example of Dadaab
The current situation of Somali refugees in Kenya demonstrates why certain aspects of local integration in the host state, such as economic self-reliance, are crucial if voluntary repatriation is expected to be a durable solution. In the beginning of April 2015, Kenyan officials publicly threatened to close Dadaab, one of the oldest and largest refugee camps in the world, and force its more than 350,000 Somali inhabitants to depart back into their home country.79 Yet, as a result of UNHCR pressuring the Kenyan government to withdraw its statement by notifying them that this would constitute a violation of international law (since the situation in Somalia is still far from safe)80 President Uhuru Kenyatta of Kenya withdrew the threat and officially stated there would be no forced repatriations.81
But what if the situation in Somalia will become safe? Under such circumstances, if the Kenyan government decides to require Somali refugees to depart from its territory, Kenya would be acting in coherence with cessation clause 1(C)(5) of the Refugee Convention82, while also upholding its obligations pertaining the principle of non-refoulement83. However, a recent UNHCR study has demonstrated that immediate repatriation when peace has been restored will not be in the best interest of Somali refugees.84 On the one hand, the study demonstrates that Somali refugees, of whom most have a strong sense of belonging to Somali culture and identity, have a desire to return and help rebuild the country. On the other hand, the study emphasizes that many Somali refugees indicate not to be prepared to return home if the civil war abates. The study shows that the possibility for a successful return is diminished by the lack of opportunities available to Somali refugees in exile.85 Bearing in mind that the conflict in Somalia has been ongoing for over twenty-three years, while hundreds of thousands of Somali refugees have continuously struggled to survive in either Kenya’s refugee camps or the challenging urban climate of Nairobi, individuals and families would not be equipped with the crucial resources and skills needed to survive upon their return.86 In such a situation, (involuntary) repatriation cannot
79 William Ruto, Kenya’s deputy president, announced these plans in response to the attacks on Garissa University College by Somali-based extremist Shabab gunmen that killed 148 people, including 142 students. Cumming Bruce,
UN asks Kenya not to close Somali refugee camp in wake of Garissa killings, NYT 14-4-2015 [online].
80 Obligations of Kenya under the cessation clause 1(C)(5)-(6) of the Refugee Convention and the obligation to uphold the principle of non-refoulement. The principle of non-refoulement pertains to the prohibition of the explusion or return of a refugee ‘in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’, See: art. 33 of the Refugee Convention, the 1967 Protocol Relating to the Status of Refugees and art. 3 of the 1984 Convention Against Torture.
81 KushKush, Kenya Steps Back From Threat to Expel Somali Refugees, NYT 6-5-2015 [online].
82 Article 1(C)(5) of the Refugee Convention persists that protection granted to refugees under the Convention ceases to apply when the refugee can no longer avail him or herself of the protection of the country of nationality ‘because the circumstances in connection with which he has been recognized as a refugee have ceased to exist’. Under these circumstances, the host state may lawfully require the former refugee to depart from its territory.
83 Repatriation of the former refugee cannot involve a risk of refoulement, Refugee Convention at art. 33(1).
84 Lambo, I., In the shelter of each other: notions of home and belonging amongst Somali refugees in Nairobi, UNHCR 2012/5, p. 17 [online].
85 Ibid. 86 Ibid.
20 be durable because the refugee has not had the chance to become autonomous and self-reliant in the country of refuge.87 Therefore, even if the circumstances in connection with which an individual has been recognized a refugee have ceased to exist, repatriation to Somalia will be unfavorable for the Somali refugees.
3.3 The Interplay between Local Integration and Voluntary Repatriation
It is not difficult to see similarities between the situation of Somali refugees in Kenya and the circumstances under which Syrian refugees live in Turkey. By all means, in both situations there is no perspective of the conflict in Somalia or Syria coming to an end soon. In such a long-standing situation, it is essential to address adequate ways of protecting and supporting the livelihoods of refugees in the host country. Not only will protection by means of access to socio-economic rights improve the livelihoods of refugees in the host country, it will also be advantageous to voluntary repatriation once the conflict in the country of origin has abated.
Once Syrians in Turkey are prepared to return home, it becomes imperative that any successor government of Syria ensures their return to occur in safety in dignity for the practice to become a durable solution. Therefore, the next sections explore the international obligations of Syria regarding the voluntary repatriation of its nationals in exile under the circumstances of a restored peace. That is, even if the standards of autonomy and self-reliance of Syrian refugees in Turkey have been met – which equips repatriating Syrians with the necessary tools to rebuild their lives and help restore their home county – the next step is to require the (successor) government of Syria to meet the ‘in safety and dignity’ requirements (as discussed in section 3.1) in order for a voluntary repatriation program to be truly durable. This means that if Syrian refugees decide to repatriate to their home country, Syria must ensure the restoration of national protection, the return into a stable situation, and facilitate adequate reintegration. Only when these requirements have been met in a situation of sustained peace, can a prospective voluntary repatriation program become a permanent solution to refugeehood.
3.4 The obligation of Syria to cooperate in a voluntary repatriation program
In a situation of a restored and sustainable peace, UNHCR is mandated to encourage refugees within its competence88 to consider returning home as a viable solution to their displacement. To
87 In the UNHCR Handbook for Self-Reliance (2005) the importance of self-reliance of refugees in the country of refuge is emphasized with regard to voluntary repatriation in a sense that ‘self-reliant refugees are more likely to achieve durable solutions’. This thesis addresses this idea with regard to Syrian refugees in the sections on local integration.
88 The solution of ‘voluntary repatriation’ applies to those considered refugees, meaning those who are confined in need of international protection in the Refugee Convention and its 1967 Protocol and/or fall within the personal scope of the competence of the UNHCR, as long as their status has not been dissolved on account of (legitimate) application of the cessation clauses. Because UNHCR has a broad competence (the personal scope has been
21 authorize a voluntary repatriation program, UNHCR often negotiates a tripartite agreement with the state of origin and the state of refuge. In this case cooperation from Turkey can be expected since the return of Syrian refugees will relieve economic and social pressures in the country.89 Syria may be willing cooperate, but it is unlikely that they will voluntarily bind the government to being responsible for ensuring that a prospective voluntary repatriation program occurs ‘in safety and dignity’.90 Considering the political reality that states are sovereign-sensitive, an agreement that poses positive obligations (e.g. public assurances of personal safety and access to employment opportunities) as well as negative obligations (e.g. no arbitrary separation from family members, respectful treatment and non-discrimination) on Syria towards its returning nationals will not easily be agreed upon.
Furthermore, because Syria is neither a party to the Refugee Convention nor to its Protocol, the possibility of an agreement on the requirements for a voluntary repatriation program posed by UNHCR diminishes. This holds true because UNHCR cannot rely on article 35 of the Refugee Convention – the article on which UNHCR usually relies with regard to matters of cooperation. This article pertains to the obligation of State Parties to cooperate with the UNHCR ‘in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention’. However, even though Syria is not party to the Refugee Convention, the government can still be bound to cooperate by a similar obligation: when the Statute of the UNHCR was adopted by the General Assembly, all States were called upon to cooperate with UNHCR in the performance of its functions under the competence of his Office.91 This call has been repeated annually in the General Assembly’s annual resolutions adopted with respect to the Office. Whereas these calls are not binding as such, Member States of the United Nations are under obligation to cooperate with the United Nations and consequently the UNHCR. The main reason for this being that UNHCR is a subsidiary organ of the General Assembly and an integral part of the United Nations.92 Since Syria is a Member State of the United Nations, any successor government of the country has a general obligation to cooperate with requests on voluntary repatriation coming from the considered to include ‘persons fleeing armed conflict, generalized violence and massive violations of human rights’ and to include ‘all who need it’), the option to facilitate ‘voluntary repatriation’ to Syrian refugees falls within the
competence of UNHCR. See for more information: Zieck, UNHCR and Voluntary Repatriation of Refugees (n76), p.430; Report of the UNHCR Working Group on International Protection, Geneva, July 6, 1992 § 14; Conclusion 22 (XXXII) (1981) of the Executive Committee (Protection of asylum seekers in situations of large-scale influx) sub (1.1); the 1994 General Conclusion on International Protection, UN doc. A/AC.96/839 §19 sub (l), sub (m); UN doc. EC/1995/SCP/CRP.3 (Sub-Committee of the Whole on International Protection) § § 17, 24, 24; UN doc. A/Res/50/152 (1995); UN doc. EC/1995/SCP/CRP.3 § 30.
89 What should be noted is that even if a tripartite agreement concerning voluntary repatriation program facilitated by UNHCR would be agreed upon, it will still be difficult to make Turkey act in coherence with this agreement: in practice, governments frequently treat UNHCR’s commencement of voluntary repatriation activities as a signal to undertake their own, often not voluntary at all, repatriation programs. See for more information: Hathaway, The Right of
States to Repatriate former Refugees, Ohio St. J. Disp. Resol. 2005/1, 193 - 194. 90 Section 3.1 elaborated on the ‘in safety and dignity’ requirements. 91 UN doc. A/Res/428(V).
22 UNHCR.93 Furthermore, an important incentive for Syria to participate in a prospective voluntary repatriation program is that a state is precluded from refusing its own nationals the right of entry, as enshrined in article 12(4) of the International Covenant on Civil and Political Rights (ICCPR): ‘no one shall be arbitrarily deprived of the right to enter his own country’. Therefore, a voluntary repatriation program facilitated by UNHCR will only relieve Syria from being the sole actor to address the mass return of its nationals. However, it must be borne in mind that even if cooperation with UNHCR is beneficial, and legally binding, the general requirements of ‘in safety and dignity’ are not.
As emphasized in section 3.1, voluntary repatriation only becomes a durable solution if it occurs in safety and in dignity. Consequently, the following sections contain an analysis of the possibility to align the ‘in safety and dignity’ requirements of voluntary repatriation with hard international law. This includes an exploration towards an alternative legal framework that will turn voluntary repatriation ‘in safety and dignity’ into a mandatory exercise for Syria.
4. State Responsibility, Reparations, and Voluntary Repatriation.
To establish whether such a specific obligation exists in international law, there are three main levels that require analysis. First, it must be determined whether Syria can be held internationally responsible for a breach of an international obligation. This analysis is made in light of the 2001 ARISWA.94 Second, it is of central importance to examine to whom (states, non-state entities, or individuals) reparations are owed regarding such a breach, since the outcome of such an examination provides an answer to the question whether returning Syrian refugees have legal standing to invoke reparations. In principle, reparations subsequent to a breach of an international obligation under the ARISWA are owed to either to several States, or to the international community as a whole.95 However, article 33(2) ARISWA recognizes the possibility for rights of reparation to pertain directly to natural persons. This possibility leads this chapter towards a third level of analysis, that is, an examination of the similarities between reparations to be granted to Syrian refugees (as victims of a breach or an international obligation committed by Syria) and the requirements posed by UNHCR with regard to voluntary repatriation ‘in safety and dignity’. If these two regimes can be aligned and integrated, Syria will be under an obligation to cooperate in a voluntary repatriation program that ensures the safety and dignity of Syrians returning home.
93 The principle of the ‘continuity of State’ in international law identifies the constancy of the institution of the State, regardless of the changes in regime over time. See Dimitrijevic, Dimensions of State Responsibility, in: Seminar on the Right to
Restitution, 1992, p. 222.
94 Based on arts. 1 and 2 in conjunction with art. 40 of the ARISWA. 95 ARISWA, art. 33(1).
