On past as prologue [3]

There has been increasing recognition that massive refugee flows do in fact constitute a threat to international peace and security, and that they therefore invoke the enforcement powers of the United Nations. As a threat to peace and security, the imposition of refugees on other states falls under Chapter VII of the UN Charter and therefore legitimizes enforcement action not subject to limits of purely humanitarian action. This link has been recognized for at least the past 15 years. As early as 1986, the report of a Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees recognized the “great political, economic and social burdens [of massive flows of refugees] upon the international community as a whole, with dire effects on developing countries, particularly those with limited resources of their own.” Accordingly, it recommended intervention by the international community through the good offices of the Secretary-General, refugee prevention actions by appropriate UN bodies (including the Security Council), and better use of aid programmes to deter massive displacements. The report was subsequently endorsed by the UN General Assembly, which explicitly defined such flows as a threat to peace and security, thus opening the door to action by the Security Council under Chapter VII several years later. It should be pointed out that Article 2(7) of the UN Charter, protecting the domestic jurisdiction of member states, specifically exempts from this protection enforcement actions taken under Chapter VII. In short, a country that forces its people to flee or to take actions that compel them to leave in a manner that threatens regional peace and security has in effect internationalized internal affairs, and provides a cogent justification for policy makers elsewhere to act directly upon the source of the threat.

This argument was also made over six decades ago by James G. McDonald, the League of Nations High Commissioner for Refugees, when he resigned in frustration at the lack of international action to halt the persecution in Germany, which was causing refugee flows to neighbouring countries. In his dramatic letter of resignation of 27 December 1935, McDonald write that “it will not be enough to continue the activities on the behalf of those who flee from the Reich. Efforts must be made to remove or mitigate the causes which create German refugees.” Such efforts, declared McDonald, fell under the League’s authority to deal with any matter affecting the peace of the world, since “the protection of the individual from racial or religious intolerance is a vital condition of international peace and security.” The argument is also made by contemporary analysts of refugee issues: “When there is aggression by a state against its own minority such that the domestic issue becomes an international one and is perceived to threaten peace and security because the minority begin a mass flight, then defensive military intervention is justified.” Others point out that, if refugee flows constitute an “internationally wrongful act” or “international crime” under the principles of state responsibility, this is also a violation of the Charter and therefore responses to it are not intervention in a state’s domestic affairs.