Questioning Governance in Protracted Refugee Situations: The Fiduciary Nature of the State-Refugee Relationship

Abstract

In recent decades, increases in the number and duration of protracted refugee situations (PRSs) have revealed substantial shortcomings in the international refugee protection framework. Falling as they do outside of the range of traditional refugee crises, PRSs present the international community with new challenges specifically with respect to effective responses and the allocation of responsibility. Efforts to address these situations have been hampered not only by the lack resources and political will among states but by the absence of a clear legal framework. Too often states abdicate their protection responsibilities and rely upon UNHCR to step into their shoes. At a time when there is the need for effective monitoring and enforcement of refugee protection and assistance, UNHCR is reduced to the role of mere aid provider. This article proposes an alternative conception of state responsibility for PRS based on the fiduciary theory of state legal authority. By embracing a fiduciary understanding of the refugee-host state relationship, we have a legal basis for the duty and responsibility of states to respect, protect and fulfil the human rights of refugees within their borders that arises as a function of that relationship as opposed to being imposed externally. With the fiduciary theory of state legal authority clearly placing primary responsibility for refugee protection on the host state, the refugee assistance function of UNHCR can be reconceived as being supportive in nature and supplementary to its original protection and supervisory mandate.