Legal provisions, principles, guidelines and agreements

Key principles and provisions in international law

International law addresses the refugee’s right to return as well as the right not to be forcibly returned to situations of persecution or serious danger. Refugee law has primarily focused on the latter right, known as non-refoulement. The right to return is set out in Article 13(2) of the Universal Declaration of Human Rights as well as in various General Assembly Resolutions, particularly those on the Palestinian refugee situation such as Resolution 194 of 1948. Article 12.4 of the International Covenant on Civil and Political Rights also states that: ‘No one shall be arbitrarily deprived of their right to enter his own country’.

The 1951 Convention relating to the Status of Refugees refers to repatriation only in the negative terms of refoulement. In contrast, the UNHCR Statute calls on the High Commissioner to facilitate the voluntary repatriation of refugees when appropriate. The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration on Refugees directly address repatriation, and emphasise the importance of its voluntary character. The 1969 OAU Convention goes on to call for ‘every possible assistance by the country of asylum, the country of origin, voluntary agencies and international and intergovernmental organisations, to facilitate their return’. The 1985 UNHCR Executive Committee Conclusion No. 40 (XXXVI) on Voluntary Repatriation underlines that in addition to being voluntary, return must also take place in ‘conditions of safety and dignity’. This language is reflected in Section V of the Guiding Principles on Internal Displacement, but the UNHCR Handbook on Voluntary Repatriation concedes that while progress has been made in identifying minimum benchmarks for the safety of returnees, ‘the concept of dignity is less self-evident than that of safety’. Indeed, more rigorous legal and theoretical analysis is sorely needed to provide more solid grounding to this key principle for the governance of return.

In countries such as Angola, these international legal and normative principles have been translated into domestic law. In 2002, the government of Angola passed the Council of Ministers Decree Number 1/01, the Norms on the Resettlement of Displaced Populations, and Council of Ministers Decree 79/02, the Standard Operating Procedures for the Enforcement of the Norms on the Resettlement of Displaced Populations. The goal of these laws was to enable the safe return and reintegration of the displaced by providing assistance and access to land with a view to enabling self-reliance. The laws specified the responsibilities of national, provincial and local authorities for establishing conditions for sustainable return, and established space for community groups and international actors to participate in this process. To date, only 30 percent of return areas have achieved the minimum conditions identified in the Norms on the Resettlement of Displaced Populations. Nonetheless, Angola’s legislation has been commended as a valuable example and precedent for the incorporation of international principles on return into domestic law (See Brookings/Bern Project 2005).

Various scholars and legal experts have discussed the conditions that return must meet in order for it to be considered safe and voluntary. For example, refugees may not be physically forced to repatriate, but if humanitarian assistance is withdrawn in the country of asylum, the displaced may effectively be compelled to return. While this clearly has ramifications in terms of respect for the dignity of the displaced, rigorous examination of the notion of dignified return is comparatively uncommon. Yet, this discussion has become particularly relevant in light of the increasing use by countries of asylum of ‘temporary protection’ measures and policies of ‘mandated return’. These policies require refugees to repatriate once the country of asylum deems the threat of persecution to have been resolved. While some scholars contend that these policies are not incompatible with international legal obligations, others argue that substituting the judgement of states for the freely expressed will of refugees may run the risk of refoulement (Hathaway 1997; Chimni 1993). This debate highlights the intersection of legal and political considerations in planning and managing return movements.

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Return-related provisions in peace agreements

The return of refugees and IDPs is a complex and essential component of almost every modern peace process. Several United Nations bodies have recognized the importance of incorporating the rights of returning refugees and IDPs directly into peace agreements. For example, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities has reaffirmed the right of refugees and IDPs to safe and secure return, and recommended that ‘the recognition of such rights be included within peace agreements ending armed conflicts’ (Sub-Commission on the Prevention of Discrimination and Protection of Minorities Resolution 1998/26). With the notable exception of the 1999 Lome agreement, virtually every peace agreement concluded since 1995 includes provisions on the right of return for displaced persons.

Although controversial in many respects, the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) set a new standard for addressing questions of return in peace accords in a detailed, comprehensive manner. Annex 7 of the Dayton Agreement is devoted specifically to displaced persons, and recognises the right of all displaced persons to return not only to their country of origin, but also to their original homes. The Agreement established a restitution commission to enable the displaced to regain access to their homes, and identified UNHCR as the international agency with primary responsibility for facilitating the return and reintegration process. The implementation of the Dayton Agreement’s provisions on return has hardly been smooth. However, the comprehensive, rights-based language on return used in the Agreement has been emulated in several other treaties. In particular, the Dayton Agreement’s conception of the right to return as the right to reclaim one’s original home has been highly influential and has, arguably, helped establish this right as a new international norm.

While there is an impressive and growing body of case-specific literature on the return of displaced persons in the context of peace processes, comparatively little attention has been paid to the broader comparative analysis of return-related provisions in peace processes. The few analyses that have been completed on this issue have adopted a primarily legal approach. Political and historical examinations of the process of negotiating the return provisions in peace agreements could improve shared understandings of how to affirm and protect the rights of displaced persons in the context of peace agreements.

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Tripartite agreements

Tripartite agreements are typically negotiated between a country of origin, a country of asylum and UNHCR in advance of a large-scale repatriation movement. These agreements should be based on the principles set out in international human rights and refugee law, as well as the relevant peace agreements. The UNHCR Handbook on Voluntary Repatriation contains a Sample Voluntary Repatriation Tripartite Agreement which recognizes that ‘voluntary repatriation, where feasible, constitutes the preferred durable solution for the problems of refugees, and that the attainment of this solution requires that refugees shall be repatriated in conditions of safety and dignity’. In a tripartite agreement the signatories identify and acknowledge their particular responsibilities in terms of ensuring the safety and security of returnees en route, at the border, and following return. ‘Assurances upon return’ are often also included in tripartite agreements. For example, UNHCR’s Sample Voluntary Repatriation Tripartite Agreement states that the country of origin shall endeavour to ensure that refugees can repatriate ‘without any fear of harassment, intimidation, persecution, discrimination, prosecution or any punitive measures whatsoever’, and regain access to land and lost property.

Scholarly analysis of tripartite agreements is scarce. The few studies that have been completed on tripartite agreements have taken a critical stance, arguing that these agreements are based primarily on the political will of donors, host countries and countries of asylum, rather than on the expressed interests of refugees. Although tripartite agreements signed by UNHCR typically emphasise that return must be voluntary, the conclusion of a tripartite agreement may be a precursor to the cessation of assistance to those refugees who do not want to repatriate. In this way tripartite agreements may limit the options available to refugees who do not believe they can safely return to their homes (Harrell-Bond 1989).

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