The UN’s Refugee Convention is increasingly marginal to the
way in which refugee protection happens around the world. I believe that
this is a bad thing—both for refugees and for states.
When introducing the draft of the Refugee Convention some 65
years ago, the UN’s first Secretary General explained that “[t]his phase...
will be characterized by the fact that the refugees will lead an independent
life in the countries which have given them shelter. With the exception of the
‘hard core’ cases, the refugees will no longer be maintained by an
international organization as they are at present. They will be integrated in
the economic system of the countries of asylum and will themselves provide for
their own needs and for those of their families.”
Yet today, and despite the fact that 148 countries have
signed onto the Refugee Convention, the reality is quite the opposite. Most
refugees today are not allowed to live independent lives. Most refugees are
maintained by an international organization. And most refugees are emphatically
not allowed to provide for their own needs.
Most refugees today do not enjoy the freedom of movement to
which they are entitled under international law. In an especially cruel irony,
the UN’s refugee agency—the United Nations High Commissioner for Refugees
(UNHCR)—runs more refugee camps than anyone else. Not only is this response
unlawful, it is absurdly counter-productive. Refugees become burdens on their
hosts and the international community, and they are debilitated in ways that
often make it difficult for them ever to return home, integrate locally or
resettle. The risk of violence in refugee camps is also endemic—with women and
children especially vulnerable to the anger that too often arises from being
caged up.
What went wrong?
One thing that is not wrong is the Refugee Convention
itself. Its definition of a refugee (“a well-founded fear of being persecuted”
for discriminatory reasons) has proved wonderfully flexible, identifying new
groups of fundamentally disfranchised persons unable to benefit from human
rights protection in their own countries.
At least as important, its catalog of refugee-specific
rights remains as valuable today as ever. The underlying theory of the Refugee
Convention is emphatically not the creation of dependency by hand-outs. It
guarantees the social and economic rights that refugees need to be able to get
back on their feet after being forced away from their own national
community—for example, to access education, to seek work and to start
businesses. And as was patently obvious to the states that drafted the refugee
treaty, refugees could not begin to look after themselves, much less to
contribute to the well-being of their host communities, if they were caged up.
For this reason, as soon as a refugee has submitted herself
to the jurisdiction of the host country, satisfied authorities of her identity
and addressed any security-related concerns, the Refugee Convention requires
that she be afforded not only freedom of movement, but the right to choose her
place of residence—a right that continues until and unless the substance of her
refugee claim is negatively determined. Indeed, a recent study shows
that those countries that do facilitate refugee freedom of movement are often
economically advantaged by the presence of refugees.
Why, then, are so many refugees subject to constraints on
freedom of movement? Part of the reason is that setting up refugee camps is an
easy “one size fits all” answer that can be quickly and efficiently rolled out
by both the UNHCR and many of its humanitarian partners. When there is a
political imperative to act, the establishment of camps is a concrete and
visible sign of engagement. Indeed, even as the rest of the world largely
ignored the regional states receiving most Syrian refugees, international
donors stepped forward to finance the building and operation of
refugee camps.
Most fundamentally, though, denying mobility rights to
refugees is a strategy that appeals to states that would prefer to avoid their
international duty to protect refugees. While not willing to accept the
political cost of formally renouncing the treaty, states with the economic and
practical wherewithal have for many years sought to ensure that refugees never
arrive at their jurisdiction, at which point duties inhere. Deterrent practices
have, however, been increasingly and successfully challenged in
courts. Of course, poorer states, as well as those with especially porous
borders, have rarely been able to deter refugee arrivals at all. In this
context, refugee detention—often accompanied by other harsh treatment
post-arrival—is seen as a second-best means for a state to “send a signal” that
they are not open to the arrival of refugees.
But why are states so often unwilling to receive refugees?
Safety and security are of course frequently invoked. While such concerns can
be real, there is no empirical evidence that refugees present a greater threat
of crime or violence than do the many other non-citizens routinely crossing
borders, or indeed those already resident in the state—including citizens. In
any event, the Refugee Convention takes a very hard line on such cases,
requiring the exclusion from refugee status of any person reasonably suspected
of being a criminal, and allowing states to send away those shown to pose a
threat to their safety or security—even back to the country of persecution if
there is no other option.
The real concern is instead that most governments believe
that refugees who arrive at their borders impose unconditional and indefinite
obligations on them—and on them alone. The idea that the arrival of refugees
can effectively subvert a state’s sovereign authority over immigration is
understandably unsettling to even powerful states. For states of the less
developed world, which receive more than 80% of the world’s refugees, the
challenge can be acute. They are supported by no more than the (often grossly
inadequate and inevitably fluctuating) charity of wealthier countries, and
rarely benefit from meaningful support to lessen the human responsibility of
protection. Of the roughly 14 million refugees in the world last year, only
about 100,000 were resettled—with just two countries, the United States and
Canada, providing the lion’s share of this woefully inadequate contribution.
The challenge, then, is to ensure that refugees can access
meaningful protection in a way that both addresses the legitimate concerns of
states and which harnesses the refugees’ own ability to contribute to the
viability of the protection regime.
The irony is that the Refugee Convention itself suggests the
way forward. It rejects a charity-based model in favor of refugee empowerment.
It is massively attentive to the safety and security concerns of states. It
does not require the permanent admission of refugees, but only their protection
for the duration of the risk in their home country. And perhaps most important,
the refugee regime was never intended to operate in the atomized and
uncoordinated way that has characterized most of its nearly 65-year history.
To the contrary, the Preamble to the Refugee Convention
expressly recognizes that “the grant of asylum may place unduly heavy burdens
on certain countries”, such that real global protection “cannot therefore be
achieved without international co-operation.”
This is not just another tired call for states to live up to
what they have signed onto. It is rather a plea for us fundamentally to change
the way that refugee law is implemented. The obligations are right, but the
mechanisms for implementing those obligations are flawed in ways that too often
lead states to act against their own values and interests—and which produce
needless suffering amongst refugees.
Summary
85% of all refugees and displaced people live in low and
middle-income countries. Most people who are displaced by violence remain
within the borders of their own countries. Those who are forced out tend to
stay as close as they can to home, in neighbouring nations. Only a tiny
fraction of all refugees – less than 1% globally—are resettled, including in
Western nations. The world’s poorer nations are bearing the brunt of the
burden. We cannot simply blindly assume that they will continue to do this
irrespective of policies in wealthier nations.
For all the generosity of taxpayers in the West and all the
lives that are saved by this, the billions of humanitarian aid provided
annually do not come close to meeting the needs of 68m displaced people and the
communities hosting them now, let alone if the numbers continue to grow. There
is no solution that involves simply continuing the status quo, or doing less,
or acting as if we can leave this as a problem for other countries to handle.
As many as two-thirds of all the refugees under UNHCR’s
mandate come from just five countries: Syria, Afghanistan, South Sudan, Myanmar
and Somalia. Peace in any one of those five countries, creating the conditions
for people to return home, would bring the numbers of refugees worldwide down
by millions. That is what we should be pressing our politicians on as voters:
challenging them to answer how their policies address the root of the problem.
How should we proceed? I have reached
consensus on a number of core principles;
Reform must address
the circumstances of all states, not just the powerful few.
Most refugee “reform” efforts in recent years have been
designed and controlled by powerful states—for example, Australia and the EU.
There has been no effort to share out fairly in a binding way the much greater
burdens and responsibilities of the less developed world, even at the level of
financial contributions or guaranteed resettlement opportunities. This condemns
poorer states and the 80% of refugees who live in them to mercurial and
normally inadequate support—leading often to failure to respect refugee rights.
It is also decidedly short-sighted in that the absence of meaningful protection
options nearer to home is a significant driver of efforts to find
extra-regional asylum, often playing into the strategies of smugglers and
traffickers.
Plan for, rather than
simply react to, refugee movements.
The international refugee system should commit itself to
pre-determined burden (financial) sharing and responsibility (human) sharing
quotas. Such factors as prior contributions to refugee protection, per capita
GDP, and arable land provide sensible starting points for the allocation of
shares of the financial and human dimensions of protection. But, as the recent
abortive effort to come up with such shares ex post by the European Union
makes clear, the insurance-based logic of standing allocations can only be
accomplished in advance of any particular refugee movement.
Embrace common but differentiated
state responsibility.
The need for no necessary connection between the place where
a refugee arrives and the state in which protection for duration of risk will
occur, thus undercutting the logic of disguised economic migration via the refugee
procedure. And rather than asking all states to take on the same protection
roles, we should harness the ability and willingness of different states to
assist in different ways. The core of the renewed protection regime should be
common but differentiated responsibility, meaning that beyond the common duty
to provide first asylum, states could assume a range of protection roles within
their responsibility-sharing quota (protection for duration of risk;
exceptional immediate permanent integration; residual resettlement)—though all
states would be required to make contributions to both (financial)
burden-sharing and (human) responsibility-sharing, with no trade-offs between
the two.
Shift away from
national, and towards international, administration of refugee protection.
I advocate for a revitalized UNHCR to administer quotas,
with authority to allocate funds and refugees based on respect for legal norms;
and encouragement of a shift to common international refugee status
determination system and group prima facie assessment to reduce processing
costs, thereby freeing up funds for real and dependable support to front-line
receiving countries—including start-up funds for economic development that
links refugees to their host communities, and which facilitate their eventual
return home. I also suggest that reallocation of the funds now spent on
domestic asylum systems would more than suffice to fund this system. And since
as described below positive refugee status recognition would have no domestic
immigration consequence for the state in which status assessment occurs, this
savings could be realized without engaging sovereignty concerns.
5. Protection for
duration of risk, not necessarily permanent immigration.
We should be clear that this is a system for which migration
is the means to protection, not an end in and of itself. Managed
entry regimes should be promoted where feasible, though the right of refugees
to arrive wherever they can reach without penalization for unlawful presence
must be respected (thus undercutting the market for smugglers and traffickers).
Some refugees—such as unaccompanied minors and victims of severe trauma—will
require immediate permanent integration, though others should instead be
granted rights-regarding protection for duration of risk.
Creative development assistance linking refugees to host
communities would increase the prospects for local integration, and many
refugees will eventually feel able to return home. But for those still without
access to either of these solutions at 5-7 years after arrival, residual
resettlement would be guaranteed to those still at risk, enabling them to
remake their lives with a guarantee of durable rights—in stark
contrast to the present norm of often indefinite uncertainty.
Furthermore, we must find
ways to lower the number of displaced people worldwide, by preventing and
solving the conflicts that drive them from their homes. We must try to rally
people and nations to act together based on common interests and universal
aspirations for security, dignity and equality: understanding that this does
not come at the expense of our safety and economic well-being at home, but is
an essential requirement when facing problems of international dimensions.
Even though we live in an era where more walls are going up
between nations, we have evidence this does not stop migration. And the
evidence for the economic benefits for open borders is unambiguous. According
to some estimates, opening the world’s borders could increase global GDP
by US$100 trillion. We just need to take a bold step and give refugees a right
already enjoyed by some – the right to move.
Finally, if we are serious
about avoiding continuing humanitarian tragedy—not just in Europe but
throughout the world—then the present atomized and haphazard approach to
refugee protection must end. The moment has come not to renegotiate the Refugee
Convention, but rather at long last to operationalize that treaty in a way that
works dependably, and fairly. #GlobalRefugeeSolutions #Refugees #HumanRights #Humanity
#ImprovedSolutionsforRefugees
