Narrowing Article 1(D)’s Interpretation to Expand Access to Asylum for Palestinians

July 28, 2021.
By Betsy L. Fisher [1].

The 1951 Convention relating to the Status of Refugees (“Refugee Convention”) defines those who are refugees and benefit from the Convention, while also listing exclusion clauses for those who do not benefit from the Convention. As currently interpreted by UNHCR, an asylum-seeker who is also a Palestine refugee[2] is often excluded from Convention status.[3] This is ostensibly because the asylum-seeker could seek assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). This is true even if the applicant has left her country of origin, and even if she has never benefitted from UNRWA’s services.

This comment argues that the justification for a broad interpretation of Art. 1(D) of the Refugee Convention offered by the United Nations High Commissioner for Refugees (UNHCR) is insufficient. Recognition of individual Palestinians’ Convention claims do not undermine their recognition as Palestine refugees, nor does it confuse areas of competence for the UN agencies involved. It concludes that the better interpretation of the 1951 Convention minimizes the application of Art. 1(D) to allow most Palestinians equal access to the right to claim asylum.

UNHCR’s Interpretation of Article 1(D) of the 1951 Refugee Convention

Article 1(D) of the Refugee Convention provides that the benefits of that Convention:

[S]hall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.[4]

While the text of Art. 1(D) is incredibly ambiguous, UNHCR interprets the phrase “at present receiving . . . protection or assistance” to have ongoing effect for all Palestine refugees who reside in an area where UNRWA operates.[5] Thus, UNHCR excludes a Palestine refugee who leaves her country of origin from Convention status if she is in another location where UNRWA operates: in the Gaza Strip, West Bank including East Jerusalem, Syria, Lebanon, and Jordan.[6] This is true is even if she never received any services from UNRWA. Moreover, her exclusion continues if she moves to a location where UNRWA does not operate, unless she can show that she cannot return to a location where UNRWA provides services.[7]

This interpretation of Art. 1(D) leads to harsh and surprising results: Consider two individuals from Syria who are threatened because they worked as White Helmets. One is of Palestinian descent. Both flee to Lebanon and request recognition as refugees from UNHCR. UNHCR informs the asylum-seeker of Palestinian descent that, although he meets the refugee definition in Article 1(a)(2) of the Refugee Convention, he is excluded from Convention status because he is a Palestine refugee. The other is recognized as a Convention refugee.

This comment argues that the reasons offered for treating Palestine refugees differently fall short—particularly because Art. 1(D) can be interpreted to allow most asylum-seekers of Palestinian descent to be considered for Convention status. Let’s assume that UNHCR is not bound by the principle of non-discrimination, and that excluding people of Palestinian descent from refugee status does not violate the principle of non-discrimination.[8] Even then, state parties and especially UNHCR should be invested in ensuring broad access to international protection for people who have experienced human rights violations, and in ensuring equitable access to asylum.

The purpose of differential treatment for Palestine refugees

Class-based recognition for Palestine refugees

Palestinians in the West Bank and Gaza, particularly, as well as in Syria, Lebanon, and Jordan, experience myriad human rights violations—often because they are Palestinians. But the applicant’s status as a Palestine refugee is also cited to justify excluding Palestinians from the 1951 Convention.[9]

UNHCR cites two purposes for its interpretation of Art. 1(D), the first that Art. 1(D) “ensure[s] that Palestinian refugees continue to be recognized as a specific class, and that they continue to receive protection and associated rights, until their position has been definitively settled in accordance with the relevant resolutions of the United Nations General Assembly.”[10]

This purpose does not justify broad exclusion for three reasons. First, recognition of individual Palestine refugees as Convention refugees does not eliminate the class-based recognition of Palestine refugees. UNRWA publicly states that “[e]ven if Palestine refugees were to fall under UNHCR’s mandate, they would still be Palestine refugees and retain their rights under General Assembly resolution 194 pending a just and lasting solution to their plight.”[11]

Second, UNHCR’s own interpretation of Art. 1(D) allows some Palestine refugees to be recognized as Convention refugees on an individual basis.[12] This means that UNHCR understands that, at least in some situations, an individual is entitled to individual recognition as a Convention refugee and class-based status as a Palestine refugee. Finally, without diminishing the urgent need for a long-term resolution to the status of Palestine refugees, it is inconsistent with international human rights law to deprive individuals of access to a human right—here, to seek asylum—to preserve a hoped-for future benefit for a class of people.

Avoiding overlapping competencies

UNHCR argues that “[t]he second purpose of Article 1D is to avoid duplicating and overlapping competencies between UNHCR and UNRWA. The responsibilities of the two agencies are intended to be complementary.”[13] UNRWA is emphatic that:

UNRWA and UNHCR also have distinct functions. UNRWA is a direct service provider. At the core of these services are education and health services, essential for the human development of Palestine refugees. UNHCR is not a direct service provider, it is not set up to be one, and it neither has the staff numbers required to deliver these services nor the requisite experience.[14]

Thus, if UNHCR had competency to work with Palestinians outside their country of origin, this would not undermine UNRWA’s functions. And UN agencies often overlap in territorial coverage. Two of UNHCR’s largest countries of operation are Lebanon and Jordan—where UNRWA also operates. In fact, UNHCR is a lead partner in a regional effort to assist Syrian refugees that involves eight UN agencies in overlapping territory.[15]

UNHCR also emphasizes that UNRWA, uniquely, has a mandate for protection of Palestine refugees.[16] But UNRWA’s protection services are limited. In 2017, UNRWA provided protection-related services in 10,000 cases—a tiny fraction of those under its mandate who face protection needs.[17] After the Trump Administration suspended U.S. government funding to UNRWA in 2020, the agency put out an emergency appeal, warning its staff that it would have to suspend salaries.[18] As UNRWA notes, it “has no authority to seek lasting durable solutions for refugees, including resettlement in third countries” and has no operation outside of its five areas.[19] The limited services UNRWA is able to provide in the region, in the face of severe funding cuts, does not negate the rights violations that many Palestinians face.

Conclusion on Art. 1(D)

In short, neither of these justifications explains the scope of exclusion, especially in light of the rights violations that so many Palestine refugees experience. The remaining reason is simply that Art. 1(D) demands exclusion of Palestine refugees from Convention status.[20] But another interpretation of art. 1(D) is available to states and to UNHCR.

Limiting Art. 1(D)

As stated earlier, UNHCR’s interpretation of Art. 1(D) excludes Palestine refugees who are in UNRWA territory, even if the asylum-seeker never benefitted from any UNRWA services. It further excludes those outside UNRWA territory unless the asylum-seeker cannot return to UNRWA territory or UNRWA ceases to exist or operate. This broad interpretation would perpetuate these harsh results, as it stands, indefinitely.

Professors Hathaway and Foster offer another interpretation: that “persons who are at present receiving” UNRWA services means at the time of the Convention’s signing. This means that Art. 1(D) would only exclude individuals who received assistance in 1951 from UNRWA or another organization called the UNCCP.[21] All other individuals of Palestinian descent would see their asylum claims adjudicated under the same refugee definition as all non-Palestinian asylum-seekers. Under this interpretation, both of the asylum-seekers from Syria who worked with the White Helmets will be held to the same criteria and recognized as refugees. This interpretation gives effect to the text of Art. 1(D) while ensuring that it does not perpetuate exclusion for the overwhelming majority of Palestine refugees born since 1951.

Were UNHCR and all states to adopt this interpretation, it would not end UNRWA’s mandate to assist Palestine refugees in its area of operation. It would not strip an individual asylum-seeker of Palestinian descent of the entitlement to benefit from any resolution for Palestine refugees. It also would not bring all Palestine refugees under UNHCR’s mandate. It would impact only Palestine refugees who are outside their country of nationality or former habitual residence—and who satisfy all other criteria of the Refugee Convention’s definition. It would ensure that most individuals experiencing human rights violations have access to international protection, whether or not they also have entitlement to class-based protection as Palestine refugees.

Some state parties to the Refugee Convention already minimize the differential impact of Art. 1(D) on Palestine refugees. The EU tracks closely with UNHCR’s interpretation but deems UNRWA’s “protection or assistance” to have ceased as to any individual who has left UNRWA territory.[22] Australia considers that “protection or assistance” already ceased for Palestine refugees, and instead requires Palestine refugees to meet the definition of article 1(a)(2) of the 1951 Refugee Convention.[23] The United States ignores Art. 1(D) completely in its application of the Refugee Convention.[24]

These alternative interpretations demonstrate that neither UNHCR nor states need to continue to exclude broad swaths of Palestine refugees under Art. 1(D). The justifications for perpetual, broad exclusion fall short. They are especially concerning because there is another, narrower interpretation of Art. 1(D) exclusion. This interpretation is faithful both to the Convention’s text and to the right to seek asylum—including for asylum-seekers of Palestinian descent.

[1] Betsy L. Fisher is the Director of Strategy at the International Refugee Assistance Project and a Visiting Lecturer at the University of Michigan Law School. This comment reflects her views only. Thanks to Tina Al-khersan and the RefLaw.org editors for their thoughtful edits.

[2] Lance Bartholomeusz, The Mandate of UNRWA at Sixty, 28 Refugee Surv. Q. 452, 457 (2010) (“The criteria for registration as a Palestine refugee are set out in the Agency’s Consolidated Eligibility and Registration Instructions, the latest version of which was issued in October 2009: Persons who meet UNRWA’s Palestine Refugee criteria. These are persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict. Palestine Refugees, and descendants of Palestine refugee males, including legally adopted children, are eligible to register for UNRWA services. The Agency accepts new applications from persons who wish to be registered as Palestine Refugees.”)

[3] This comment uses the term “Convention refugees” to refer to individuals who qualify for the protections in article 2 through 34 of that Convention, either under article 1(a)(2) or article 1(D). “Convention status” is used to mean the status of qualifying for those protections.

[4] This comment focuses only on the first paragraph of art 1(D). For a full discussion of article 1(D)’s drafting history and analysis of the second paragraph. See James C. Hathaway & Michele Foster, The Law of Refugee Status 510-21 (2d ed. 2013).

[5] Emphasis added.

[6] Frequently Asked Questions, UNRWA, https://www.unrwa.org/who-we-are/frequently-asked-questions (last visited May 30, 2021).

[7] Note on UNHCR’s Interpretation of Article 1D of the 1951 Convention relating to the Status of Refugees and Article 12(1)(a) of the EU Qualification Directive in the context of Palestinian refugees seeking international protection, UNHCR (May 2013), https://www.refworld.org/docid/518cb8c84.html.

[8] Establishing whether this differential treatment is discriminatory under international law exceeds the scope of this comment for two reasons. First, UNHCR is not a state entity, though it may have obligations to abide by international human rights law and to avoid discrimination. See Niamh Kinchin, The Implied Human Rights Obligations of UNHCR, 28 Int’l J. Refugee L. 251 (2016); Gudrun Monika Zagel, International Organisations and Human Rights: The Role of the UN Covenants in Overcoming the Accountability Gap, 36 Nordic J. Hum. Rts., 74, 74-90 (2018). Second, while non-discrimination is binding on all states, the Human Rights Committee held that “differentiation based on reasonable and objective criteria does not amount to prohibited discrimination” and under the International Covenant on Civil and Political Rights (ICCPR), the Committee has shown a “tendency simply to assume the reasonableness of many state-sanctioned forms of differentiation.” Broeks v Netherlands, HRC Comm. No. 172/1984, ¶ 13 (April 9, 1987); James C. Hathaway, The Rights of Refugees 112 (2d ed. 2021).

[9] For a discussion of the ongoing impact of art. 1(D) on Palestinians who are newly displaced, see Itamar Mann, The New Palestinian Refugees, EJIL: Talk! (May 19, 2021), https://www.ejiltalk.org/the-new-palestinian-refugees/.

[10] Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees, para. 6, UNHCR (Dec. 2017)  https://www.refworld.org/docid/5a1836804.html.

[11] UNRWA, supra note 6.

[12] See UNHCR, supra note 7, at 4-6.

[13] Applicability of Article 1D, para. 7, UNHCR (Dec. 2017), https://www.refworld.org/docid/5a1836804.html.

[14] UNRWA, supra note 6.

[15] Regional Strategic Overview 2021-2022, Regional Refugee & Resilience Plan, UNHCR & UNDP, at 43 (Dec. 2020), https://reliefweb.int/sites/reliefweb.int/files/resources/RSO2021.pdf.

[16] UNHCR, supra note 10, 5 n. 15.

[17] What We Do: Protection, UNRWA, https://www.unrwa.org/what-we-do/protection (last updated Mar. 2018).

[18] Stephen Farrell & Nidal al-Mughrabi, U.N. refugee agency for Palestinians appeals for money to pay salaries, Reuters (Nov. 9, 2020) https://www.reuters.com/article/israel-palestinians-unrwa-int-idUSKBN27P22W.

[19]  UNRWA, supra note 6.

[20] I note that Art. 1(D)’s second clause does provide for ipso facto inclusion in Convention status for those whom protection or assistance has ceased. Sadly, I see very little evidence that state parties will respect this obligation. In any case, without any resolution for Palestine refugees in sight, I believe that Art. 1(D) is, seventy years on, a harmful and discriminatory clause that ought to be repealed through the process outlined in Article 45 of the Refugee Convention. However, I understand that any revision to the Convention is unlikely, and is further unlikely to expand eligibility for the refugee definition.

[21] Hathaway and Foster, supra note 4, at 513-15.

[22] See, e.g., Nawras Bolbol v. Bevánd orlási és Állampolgársági Hivatal, Case C-31/09, 17 June 2010, Grand Chamber of the Court of Justice for the European Union.

[23] Federal Court of Australia, Al-Khateeb v Minister for Immigration and Multicultural Affairs [2002] FCA 7, January 11, 2002, para. 63–64, https://austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2002/7.html.

[24] Susan Akram., Closing Protection Gaps: A Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention, Badil 263 (Susan Akram & Nidal al-Azza, eds., 2d ed. 2015).

Suggested citation:  Betsy L. Fisher, Narrowing Article 1(D)’s Interpretation to Expand Access to Asylum for Palestinians, REFLAW (July 28, 2021), https://reflaw.org/narrowing-article-1ds-interpretation-to-expand-access-to-asylum-for-palestinians/. 

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