UNHCR

Traditionally, the world of international cooperation has been split in a binary, where refugee responses and the creation of the United Nations High Commissioner for Refugees (UNHCR) were situated in the humanitarian action field, with the consequence that help provided to refugees was reduced to specific situations of short-term displacement, assuming that the initial situation would eventually resolve and refugees would be able to go back to their countries of origin. For many crises, however, this has not been the case, given their complexity and scale. These ‘protracted’ crises, despite the language of urgency, have been at the centre of the humanitarian stage for decades. According to the United Nations High Commissioner for Refugees (UNHCR), the longest protracted situation are the more than 2.4 million Afghan refugees in Iran and Pakistan, but the situation of Syrian, South Sudanese, Somalis, Sudanese, Congolese or Eritrean refugees also qualifies as ‘protracted’, according to the definition that the UNHCR has been employing since 2004. The evidence of this long-term persistence of crises has been the search for durable solutions, which have been traditionally three: resettlement in another country, voluntary repatriation to the countries of origin and local integration. Yet, these solutions have not been curated by refugees themselves, but rather from the interests of the so-called ‘developed’ nations or the Global North, who have established the policies of the UNHCR through its governing body, the Executive Committee (ExCom).

Refugees as a particularly vulnerable group have increasingly found their way into recent discussions in philosophy, public policy, law, judicial decisions, etc. In fact, the Global Compact on Refugees aims to present a preliminary version of the importance of refugees in contemporary ideas of human agency-based development. Building on this, I propose that deeper engagement through a refugee lens must underlie two interlinked conceptions that are informing law and policy on various rights issues, i.e., ‘human dignity’ and a human capability-based development theory, the Capability Approach (CA). These conceptions are relevant since they have been reifying the way development is viewed to simultaneously address global issues and promote human agency. Yet, till now, even these two ideas are confronted by a (non)citizenship blind spot, particularly in relation to refugees. Thus, I wish to emphasise that the complementary understanding of dignity and CA needs to incorporate the category of ‘refugees’ to be fully coherent as theories of development. I particularly utilise Martha Nussbaum’s foregrounding on dignity in her theory of the CA to highlight its relevance yet the need for further work to include the legally ‘non-citizen’ refugee who does not neatly fit into the idea of nation states and the closely connected citizenship paradigm.

Most in the International Investment Law community would be aware of the ongoing work by the United Nations Commission on Transnational Trade Law’s (UNCITRAL’s) Working Group III on reforming the Investor-State Dispute Settlement (ISDS) system. This work has been actuated by criticisms of the ISDS system (or, more precisely, the Investor-State Arbitration (ISA) system). A major proposed reform is the establishment of a standing Multilateral Investment Court (MIC) to replace or co-exist with the ISA system.