The horrific images of refugees dying on European shores seem – finally – to have galvanized public opinion in favor of a shift to protection rather than deterrence. Some leaders seem still to be committed to harsh action – Hungarian Prime Minister Orban’s comment that the arrival of refugees threatened “Europe’s Christian roots” and the decision of Czech officers to use indelible ink to write numbers on the hands of refugees, reminiscent of the Nazi tattooing of Jews and other minorities, being especially odious examples.
But the proverbial tide does seem to have turned. Pro-refugee marches in Vienna, Icelanders demanding that their government let them open their homes to refugees, and English and German football fans displaying banners welcoming refugees to join them at matches seem to have paved the way for the momentous announcement by Austria and Germany that those countries would open their doors to refugees trapped in Hungary. German Chancellor Merkel has emerged as the voice of reason, rightly insisting that the protection of refugees “is morally and legally required” of all state parties to the Refugee Convention.
What now?
First, it is important not to simply go back to “business as usual” when the immediate humanitarian emergency ebbs. The current pressures will abate as some states – inside and beyond Europe, as recent French and Argentinian responses attest – will inevitably follow the Austrian and German lead and open their doors to at least some refugees. The impending arrival of winter weather will moreover stymie the ability of many refugees – in particular, the most vulnerable – to travel to safety. While relative calm has historically inclined governments to return to their protectionist ways, the failure to seize this moment to minimize the risk of future protection tragedies would represent a serious ethical lapse.
Second, we must be clear that there is no need whatever to renegotiate the UN’s landmark Refugee Convention. Its definition (“a well-founded fear of being persecuted” for discriminatory reasons) has proved wonderfully malleable, 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, much less the ongoing detention of refugees in camps. It is rather oriented to enabling refugees to become self-reliant through mobility, education, work – and includes rights that speak quite specifically to the real vulnerabilities and needs of those forced to live outside their own national community. It would be a travesty of epic proportions to contemplate the renegotiation of this treaty.
This leads to the critical third and most important point. Not only governments – but most tragically, even the international refugee agency, UNHCR – have been inattentive to the fact that the drafters of the Convention never intended the treaty 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.” Action to realize this promise in the Refugee Convention’s Preamble is more important now than ever.
It is, of course, patently unfair that countries such as Greece or Hungary be expected to assume most of Europe’s responsibility under the EU’s so-called “first country of arrival” rule, which forces refugees to stay in the first place they arrive – whatever that country’s resources, and whatever protection is realistically available there (or not). But in all of the talk about the European refugee crisis, we have lost sight of the fact that just three countries bordering Syria – Jordan, Lebanon, and Turkey – have received more than ten times as many Syrian refugees as the rest of the world combined. Indeed, more than 80% of the world’s refugees live in countries of the less developed world and are guaranteed no financial support from wealthier countries. Nor are these front-line states meaningfully assisted by resettlement. Of the roughly 14,000,000 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.
Nearly twenty years ago, I had the honor to lead of team of lawyers, social scientists, nongovernmental activists, and governmental and intergovernmental officials – drawn from all parts of the world, and including refugees themselves – who worked for five years to conceive the model for a new approach to implementing the Refugee Convention. Despite the fact that consensus on a comprehensive means to operationalize the treaty was reached, no action was taken by either the UNHCR or governments to move the project forward on the international stage. While the model we conceived can no doubt be improved, I believe that it offers a sound basis to launch the effort to devise a more managed system of global refugee protection, predicated on true and dependable sharing of burdens and responsibilities.
First, we should plan for, rather than simply react to, refugee movements. Specifically, drawing on insurance-based logic, the international refugee system should commit itself to predetermined burden (financial) sharing quotas; pre-determined responsibility (human) sharing quotas; 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.
Second, we should be clear that this is a system for which migration is the means to protection, not an end in and of itself. This means that there must be no barriers to entry – refugees should be understood to have the right to arrive wherever they are able to reach, and that there should be no penalties for unlawful arrival or presence, though managed entry regimes ought to be promoted where feasible. Without barriers to entry, the market for smugglers and traffickers will be significantly reduced: people mortgage their futures and risk their lives now only because there is in most cases no realistic alternative to gain entry to a safe country. On the other hand, protection for duration of risk should be the operational norm, with immediate permanent integration required only in exceptional cases (unaccompanied minors, torture victims, etc). Mandated repatriation should be understood to be permissible where the cessation standard is met within 7 years of arrival, routinely accompanied by a guarantee of repatriation and development assistance. But if refugee status cannot be lawfully ended on the basis of a durable and fundamental change of circumstances at the 7 year point, residual resettlement or local integration must be guaranteed to those still at risk, enabling them to remake their lives with security.
Third, as an interstate regime, refugee protection should be operationalized in a way that maximizes its compatibility with state interests. Under the model, there is no necessary connection between the place in which a refugee arrives and first presents her claim and the country where – assuming she is a refugee – she would benefit from protection for the duration of risk. By severing the connection between the place where a refugee arrives and the state in which protection is afforded (for example, a refugee arriving in Miami might be protected in Costa Rica) the logic of disguised economic migration via the refugee procedure is undermined. We should also harness the ability and willingness of different states to contribute in different ways. Rather than asking all states to take on the same protection roles, the core of the renewed regime should be common but differentiated responsibility. 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).
All states would, however, be required to make contributions to both (financial) burden-sharing and (human) responsibility-sharing, with no trade-offs between the two. 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 the treaty in a way that works dependably, and fairly.
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There is a lot here that cannot be gainsaid: that the flow of refugees is not just an issue for Europe, but the world; that the current resettlement programme cannot meet demand or fulfil its role as a sustainable, durable solution; and that refugee status is (and always has been) temporary under the 1951 Convention and that that treaty is not up for renegotiation.
However, some of the proposals preserve the “muddle” and, indeed, add to it.
First, the majority of persons of concern to the UN High Commissioner for Refugees are still internally displaced persons and this set of proposals does little or nothing for them. And it is not possible to look at the refugee crisis and separate it out from those who are internally displaced since in many cases they have just chosen different locations to escape the conflict and in others the refugees are mixing with IDPs in the state of refuge.
Even when one confines the discussion to refugees, those who have crossed an international border, the response is not going to resolve any flow of persons in the short term or long term. Refugees have been let down, by states not offering protection and, even where they do, failing to meet all their rights, although this might be down to the strain placed on the state that is not being shared by the rest of the international community. UNHCR is also being failed by states, in terms of not fulfilling their international obligations under treaties they have voluntarily ratified, in terms of inadequate funding and funding mechanisms, and by other UN actors who have not always included refugees and other displaced persons in the development plans for states. Moreover, Professor Hathaway’s recommendation seems to ignore the fact that refugees retain rights even if they have been displaced – it is not for some international programme to ship them around the world like some ‘package’ that went to the wrong address: “(for example, a refugee arriving in Miami might be protected
in Costa Rica)”. It is not an “interstate regime”, it is a human rights regime.
And the proposed new mechanism that seeks to ensure burden sharing, a worthy and undeniably essential objective, will simply be too complicated to prove effective. If all states are to be required to meet responsibility-sharing with different protection roles, how many bureaucrats will be needed, rather than UNHCR protection officers in the field ensuring that those in need have their rights met.
The seven year plan might seem like one that will ensure there are fewer grandchildren born in refugee camps, but it fails to respond to the dynamic character of the crises that prompt movement and it undermines the autonomy of refugees – seven years is an entirely arbitrary timeframe and one that does little to produce a solution acceptable to all. Refugees should be given the capacity within states to undertake education and employment opportunities, as proposed, so as to put them in a position to find a durable and sustainable solution – to that end, the Solutions Alliance is enhancing state capacity, empowering displaced individuals and operationalising interoperability within the UN and between the UN and states and civil society.
The so-called crisis (see this post on “Why Europe does not have a refugee crisis”) is one down to an out of date allocation process within Europe. If states fulfilled their international obligations under the 1951 Convention, including accepting the supervisory function of UNHCR set out in Article 35 and that UNHCR has the internationally accepted role of providing international protection to refugees under its Statute because they cannot or are unable to avail themselves, as they ought to be, of the protection of their country of nationality, and properly funded UNHCR so that it could allocate resources as it’s mandate provides, then many of these crises for refugees would be greatly reduced. In the end, though, it is the abject failure of the Security Council to respond to the Syrian conflict that has left states in the region and beyond and UNHCR picking up the pieces.
I thank Prof. Gilbert for his speedy response. Many of the answers to his concerns are in the Harvard article (http://repository.law.umich.edu/articles/1622/) or in the social science background studies, published as Reconceiving International Refugee Law (http://www.brill.com/reconceiving-international-refugee-law). I appreciate that it would have been unreasonable to expect anyone to have (re)read these discussions before engaging so quickly with my post, but do encourage anyone interested in this issue to do so.
I will restrict myself to three points of response.
First, I disagree quite fundamentally that it is somehow wrong to try to fix the refugee regime without finding answers for others, including IDPs. This is a bit like condemning the Women’s Convention because it doesn’t remedy the situation of children or the disabled (with whom women may be in practical terms associated). I have elsewhere elaborated the point that relying on the superficial commonality of displacement to agglomerate refugees and IDPs is sloppy – indeed, dangerous – thinking (J. Refugee Stud. 20, no. 3 (2007): 349-69). In short, there are major differences between refugees and IDPs in terms both of the ability of the international community to guarantee a remedy and, most important, the nature of the rights that are required. Refugee rights are about responding to the special risks of disfranchisement that follow from alienage – a situation not faced by IDPs. IDPs are in pith and substance internal human rights victims, and their needs should be addressed as such – and without privileging the displaced over the non-displaced human rights victims.
Second, I reject entirely the allegation that the reformulation model is somehow not attentive to refugee rights. To the contrary, it is modeled specifically with a view to ensuring those rights, a situation which does not prevail under the present atomized system. On the specific issue of responsibility sharing, Prof. Gilbert errs if he suggests that refugees have a right to stay in their first or preferred country of asylum. What they have is a right to be protected in accordance with international legal standards – which the reformulation model, unlike the present system, has clear incentives to ensure. Nor is the 7-year cutoff for repatriation in any sense arbitrary. The social science studies for the reformulation model drew on psychological studies to identify 5-7 years as the maximum time that an impermanent – even if rights-regarding – status was acceptable. We therefore built a model that provides every refugee with access to permanent resettlement or local integration at that point.
Third, while Prof. Gilbert is correct that this model will not provide a short term solution to the failings of the refugee system, I believe he is unduly pessimistic that it cannot provide a medium term answer. Indeed had UNHCR and states begun work on testing and refining the approach in 1997 we might well have not have been confronting the current mess in Europe and elsewhere. Prof. Gilbert’s plea in contrast seems based on the same tired rhetoric of root causes and humanitarianism that has not delivered rights-regarding answers to this or most other recent refugee flows, and which has distracted the UNHCR from its core mandate of refugee protection.
I find it difficult to discern any genuinely legal argument in Mr. Hathaway’s post; instead it appears to be a political opinion piece. Is this really suitable for this blog?
And while Mr. Hathaway of course has the right to hold and promote even the most unusual opinions, there are limitations to what can be considered an acceptable use of language. I find it astonishing that concerns over Europe’s moral heritage can be light-handedly dismissed as “odious”. Does the author really believe that mass immigration of migrants from predominantly Muslim countries will remain without impact on the receiving societies? How many Muslims would he accept to settle down in Michigan, perhaps without any control of their eventual affiliation with IS and similar groups?
Worse than that, his comparison of the Czech authorities’ attempts to keep track of illegal immigrants (who, as it appears, are absolutely uncooperative in this regard) with the Nazi Holocaust is not only out of place, but indeed shameful.
Really, I fail to understand why such a contribution, which is inappropriate both in style and content, can be published here.
On substance, I do not believe it can seriously be argued that the status of war refugee confers one an entitlement to settle down in the country of one’s choice. I also find plans to distribute refugees according to a fixed quota (within the EU or worldwide) hardly realistic. If for example a refugee who wants to go to Germany is, in function of such a quota, ordered to go to Bulgaria, how will the Bulgarian Government (even supposing it accepts the quota idea) ensure he stays there? Would that not require to put him into a detention camp, or to close and control all borders – solutions that are quite unlikely to find the approval of our refugee law expert?
There comes a point in the life of a blog when you really need to move to writing an academic article that can be properly footnoted and where the nuanced legal arguments can be teased out. This discussion is headed in that direction. Whilst composing this response, more than once I wanted to be able to insert a 10 line footnote. Nevertheless, some of the issues in this debate can be addressed, even if the full arguments are actually much more complex.
First, there are several issues on which Professor Hathaway and I would undoubtedly agree: the response of the international community over the past years and months in the face of the movement of peoples beyond borders has been inadequate, and both of us want to see an improved effort by states to meet the rights of refugees as set out in the 1951 Convention. The scenes on the Serbia-Hungary border on last night’s television news should appal us all. There are also elements where our approaches complement each other: he wants greater burden-sharing and I would want greater interoperability within the UN to facilitate that in terms of development programmes for states that recognise they are hosting refugee populations. However, there are some fundamental differences in approach, at least on the face of it – and here, I admit, the limitations of a blog may mean I am misreading some of his ideas.
To start, international law recognises that states can control their borders – it is almost a fundamental tenet of statehood if that includes the idea of a defined territory. The 1951 Convention, however, provides that those who access the territory of a state can seek refugee status there (oh for a 10 line footnote). As we agree, refugee status gives rise to a range of rights, the most important of which at time of entry is non-refoulement, the right not to be sent back to the frontiers of a territory where the refugee’s life or freedom would be threatened. Under a strict interpretation of the 1951 Convention, they could be relocated somewhere else, but only if the refugee has a right of access there or there was some agreement between the receiving state and the state of relocation – and if it is the latter scenario, the responsibility of the receiving state would be retained. To demonstrate the problems with Professor Hathaway’s idea that refugees could be relocated so as to ensure burden-sharing, an indirect analogy might be drawn with Australia’s refusal to process applicants who arrive by sea on Australian territory such that refugee status determination is carried out in other countries, such as Papua New Guinea or Nauru. PNG and Nauru are parties to the 1951 Convention and the ICCPR, so one could imagine that prima facie they would be safe places for relocation. However, PNG criminalises homosexuality, putting those sent there for RSD by Australia at risk depending on their sexual orientation and, in some cases, has led to applicants for refugee status being afraid to reveal the reason for flight (see J McAdam and F Chong, “Why Seeking Asylum is Legal and Australia’s Policies Are Not”, UNSW Press 2014). One can foresee the problems with trying to move refugees to other states where they ought to be protected – there is absolutely no administrative saving whatsoever in Professor Hathaway’s regime that first decides whether you are a refugee and then decides to move you on. Furthermore, no matter how much he describes it as a system that respects refugees’ rights, this is a state-centric model that moves refugees around as best suits states (even given that one might ever obtain the agreement of states to accept relocation from a richer state to one more economically challenged). While Articles 12 and 13 of the ICCPR cannot be applied to refugees without examining the national laws of the state in question, there will be states where refugees would be treated as “lawfully within the territory” simply because they are applying for protection under the 1951 Convention; given that, they should not be ‘moved on’ if they are seeking refugee status if that is where they have chosen to apply.
As for the seven year timeframe, from when should it start to run? From when the person first crosses an international border, such as from Eritrea to Ethiopia, from the first time they spend an extended period in a state before moving on, such as whilst waiting to cross the Mediterranean, from the time of applying for refugee status, from when it is granted, or from arrival in the country of relocation if that is the result of Professor Hathaway’s enforced burden-sharing? Much better, as Professor Hathaway and I agree, that refugees are accorded access to education and employment opportunities under the 1951 Convention so that whenever it is safe or the chance for resettlement or integration arises, the refugee is well situated to assume a life back home or elsewhere. Those opportunities and chances will be much more likely to be available if the development plans of states are always designed with regard to any displaced populations on the territory – UNHCR should not be put in the position of operating a parallel state structure because there is no other way to provide assistance to refugees.
As for IDPs and refugees, of course there are separate regimes for their protection because of the very nature of their different displacements. However, that does not impact on solutions for their very similar scenarios, especially when populations are so often mixed at that point. Whether UNHCR should have a role with IDPs is a question that is not simply tired, it is dead and buried: it is a fundamental element of their extended mandate and one that allows them to address holistically the problems arising from displacement. Can anyone question with respect to the peace process underway in Colombia that UNHCR should treat differently the six million IDPs from the refugees in Ecuador, Venezuela and Central America, along with those in Europe and North America, when seeking to help all the parties resolve the consequences of a fifty year conflict. If there is a ‘muddle’, it is in not recognising that the rights regime for those displaced and the solutions for that displacement are related but different aspects arising from a single cause: thus separating out refugees is an academically valid exercise with little practical relevance.
As for root conditions (I prefer that term along with many social scientists, rather than looking for causes), if one wishes to preserve the 1951 Convention and protect refugees, then one is forced to consider why they have a well-founded fear of persecution (a broader concept than just human rights violations and one that better embraces those fleeing the conflicts driving the refugees seen in television news footage) on account of race, religion, nationality, membership of a particular social group or political opinion. Having considered the conditions giving rise to flight, though, the next step is to grant them their rights and to seek solutions that respect their autonomy and the role of UNHCR in providing them with international protection while they are unable or unwilling to avail themselves of the protection of their country of nationality.
Jakob,
Whether a piece contains sufficient legal content and is appropriate for this blog is a judgment for the editors of this blog, and not for you. This is not the first time that you have taken it upon yourself to comment whether this piece or that is publishable on EJIL Talk, which, I repeat, is not a judgment for you to make, and certainly not a judgment for the blog’s comment section. Obviously you are free to say whatever you want elsewhere – it’s a free Internet – but not here. Condescending comments such as these can only serve to derail a discussion, which in your case they have done a number of times in the past. Please consider yourself warned that further comments in this vein will not be tolerated and will be promptly deleted, and that you yourself may be banned from commenting.
Marko,
are you the editor who found Hathaway’s Nazi comparison suitable for publishing?
Maybe you should assume your responsibility for it rather than trying to silence criticism.
Dear Mr Cornides,
The tone and contents of your comments on this blog do not conform to the standards of civility that we expect on a serious forum such as this (or indeed those that should be expected in any decent place). We will not tolerate ad hominem and personal comments directed at authors or those who post comments here. Such comments will be deleted. The comments function is intended to promote intelligent discussion, and exchange of ideas on the substance of the issues raises. It is not a venue for conducting personal attacks. In addition, bemoaning the publication of a post does not advance the discussion in any way.
You should regard this a further (and final!) warning that you should cease and desist from intemperate, indecent, and, frankly, unhelpful, comments.
Dear Dapo,
indeed I believe that this blog should be a place for intelligent discussion. But this is not (any more) what I find here.
I do not believe anybody reading this exchange would qualify my comments as “personal attacks”, or find them particularly inappropriate to what is being commented upon. Instead, most readers will wonder what made you publish a piece that denounces concern for Europe’s Christian roots as “odious” (rather than respecting these as a valuable resource that should be preserved) or, even more astonishing, that equiparates “the decision of Czech officers to use indelible ink to write numbers on the hands of refugees” with “the Nazi tattooing of Jews and other minorities”.
Even accepting that there might be considerable room for improvement in the Czech officers’ way of dealing with the situation, how is this even remotely commensurate? Do I really need to explain to you (and other readers) that the uniqueness of the Nazi Holocaust consisted not in painting numbers on people’s hands, but in sending them into gas chambers?? Is it even remotely acceptable to suggest that the Czech officers mentioned in Hathaway’s post had similar intentions or a similar mindset as the SS guards at Dachau or Auschwitz? I continue to think that such language is outright scandalous and I am astonished that you seem to consider it acceptable and lash out at the critic instead.
It is true that my criticism of this post is directed not only against the author, but also at the editors, and I am aware that this troubles you and Marko. But your first responsibility as an editor is not to silence critics, but to ensure that the (original) contributions on this blog respect some basic standards of quality both regarding and content.
So, if you really want this to be a blog in which silly Nazi-aspersions are liberally handed out to all those who happen not to share your authors’ political stances, then please let me know. I will take note and simply stop reading. But don’t pretend that such a blog would qualify as a “decent place”.
I also continue to think that besides his unfortunate Nazi-comparisons Mr. Hathaway’s piece suffers from another very fundamental defect, i.e. that it advances no genuine legal argument. It does not really say that international law provides for what he is proposing, but he says that it should be changed according to what he thinks is politically desirable. His proposals are however far from realistic: they are not even remotely likely to be accepted in the fist place – but even if they were one does not see how they could actually be enforced.
The general problem for any suggestion to change the system is that the rights of refugees must be balanced against the rights of receiving countries, and and that for both there must be appropriate mechanisms of enforcement. Besides the question who has, and who has not, a rightful claim to refugee status (something that a receiving state clearly has the right to verify!), the current crisis is to quite a considerable extent due to the fact that many asylum seekers appear to not bona fide co-operate with the authorities of the countries to which (or through which) they are migrating. Any proposal for a system change needs to offer a credible solution for this kind of situation, but I do not see one in Mr. Hathaway’s text.
Anyway, I do not want to spend more time on this. I think I am quite helpful in suggesting that, rather than sending (final!) warnings to me, you might give a more careful reading to the texts that are proposed to you as original blog contributions.