Refugee Status Determination under the Mandate of UNHCR: “Soft Enforcement” of the Supervisory Role of UNHCR in International Law

Abstract

This article examines the recognition of refugee status determination, which was conducted by UNHCR, by states with a particular focus on the legal basis of UNHCR's supervisory role. Although the practices differ from state to state, most contain elements of “soft enforcement” where the issue of recognising refugee status conducted by UNHCR is discussed and is given weight. Refugee status determination is considered as the supervisory task of UNHCR. Consequently, Article 35 of the 1951 Convention is interpreted by the author, as it is the legal basis of UNHCR's supervisory responsibility and binds Contracting States to co-operate with UNHCR in particular to facilitate UNHCR's duties. Even though this is a binding obligation, the instruments, namely the UNHCR Statute and the UNHCR Handbook, for determining refugee status conducted by UNHCR merely have authoritative character. Therefore, the author evolves on the approach of a “soft enforcement” of these instruments and introduces a guidance tool, elaborated by UNHCR itself, in order to influence the decision-making process of Contracting States. Particularly those states are concerned, which are confronted with the issue of recognition of refugee status conducted by UNHCR.