UNHCR Seeks More Comments: Art 1D (Palestinians) and “former habitual residence”

UNHCR, beginning to make its admirable notice and comment practice a routine, is seeking comments on two new proposed guidelines, one on Article 1D and its application to Palestinian refugees, and the other on the definition of “habitual residence.” Deadline is January 9.

Regarding Article 1D, this appears to be UNHCR’s third bite at the apple, having issued a Note in 2002, and a Revised Note in 2009. Article 1D states that the Refugee Convention (and UNHCR’s Mandate)  “shall not apply to persons who are at present receiving from [UNRWA] protection or assistance.” But it then goes on to say that “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.”

Shockingly, the application of a convoluted treaty provision to the world’s most contentious refugee problem has proven to be a challenge.

Let me take the opportunity here to highlight one issue related to Article 1D on which I have done a good deal of work: Palestinian refugees in Lebanon, Jordan or the Occupied Territories who are in theory eligible for UNRWA assistance, but who cannot actually register with the local UNRWA office because of host state policies, UNRWA practice/policy, or a combination thereof (see here for a real life illustration – though note that the data may be out dated).

In the 2009 Revised Note, UNHCR regrettably indicated that it would not have a mandate over any such a Palestinian, leaving a theoretically eligible refugee without any protective UN agency. At the time, I called this a breach of UNHCR’s mandate, because it imposed “a group-based geographic exclusion of Palestinian refugees” without sufficient attention to individual circumstances and in conflict with the “continuity of protection” principle.

I have had an initial read through the new proposed Guidelines, and I am not yet clear if they resolve this problem definitively.  But I’ll return to this question after I’ve had more time to study them.