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The Case for Arbitration
The UNHCR Mandate
The UNHCR is mandated by the United Nations to lead and coordinate international action for the worldwide protection of refugees and the resolution of refugee problems.
UNHCR’s primary purpose is to safeguard the rights and well-being of refugees. In its efforts to achieve this objective, UNHCR strives to ensure that everyone can exercise the right to seek asylum and find safe refuge in another state, and to return home voluntarily. [UNHCR Global Appeal 2003, page 3].
The UNHCR's Bilateral Agreement with China
On December 1, 1995, the UNHCR entered into a bilateral agreement with China upgrading its presence in China from a mission to a branch office.
Under the Agreement, the primary function of the UNHCR office in China is to provide international protection and humanitarian assistance to refugees there. [Art. II, and Art III,1]. China welcomes this. [Art. IV,1]. The office is to fulfill its functions in China in accordance with the UNHCR mandate, described above. [Art. II, Art. IV,2, and Art. IV,4].
In carrying out its function, UNHCR personnel may at all times have unimpeded access to refugees and to sites of UNHCR projects. [Art. III,5]. Finally, in the event of an unresolved dispute arising out of or in connection with the Agreement, the UNHCR may invoke a binding arbitration. [Art. XVI].
Unresolved Dispute
The UNHCR office in China has repeatedly sought access to displaced North Koreans in China. The government of China has refused access by the UNHCR to this population, and has denied access to the UNHCR by this population. In addition, the government of China has foreclosed even the possibility of individual grants of asylum among them. It declares all of them to be conclusively non-refugees, and makes no provision for individual adjudication to the contrary.1 The UNHCR condemns this practice as unlawful refouling, and it insists on unimpeded access to these persons.
At issue is the UNHCR’s right to unimpeded access to these persons under Article III,5, and its duty to protect refugees and provide humanitarian assistance under Article III,1.
Binding Arbitration
The UNHCR can vindicate its mandate by invoking binding arbitration of this dispute.
1 This is why some North Koreans, at great personal risk, have attempted to gain sanctuary in foreign embassies in Beijing. All other doors are closed to them. The Chinese government's solution to this refugee problem is to put barbed wires around foreign embassies and systematically rout and refoul the remaining North Koreans.
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