Will the Global Compact on Refugees Address the Gap in International Refugee Law Concerning Burden Sharing?

Introduction

There are 65.6 million forcibly displaced persons including over 22.5 million refugees in the world. According to UN Refugee Agency (UNHCR), 10 states are hosting more than 60% of the world’s refugees while 10 states are providing 93% of UNHCR’s budget and three states are accounting for 90% of refugee resettlement. The number of refugees is growing and a more equitable sharing of the burden for hosting and supporting refugees is desperately needed. Despite this need international law, in particular, the principal instrument for the protection of refugees worldwide, the Convention relating to the Status of Refugees (the 1951 Convention) does not explicitly deal with burden sharing. The 1951 Convention does not provide clear pre-determined criteria for predictable sharing of burdens among states or introduce any mechanism to ensure adequate compensation to the states hosting or supporting more refugees than others. This creates, a well-documented gap in international refugee law concerning burden sharing. To address this gap and better respond to the changing and growing needs of people on the move, UNGA unanimously adopted the New York Declaration for Refugees and Migrants (New York Declaration) on 19 September 2016. In the New York Declaration, 193 states committed to a more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees. The New York Declaration foresaw adoption of a Global Compact on Refugees (GCR).  UNHCR is tasked to prepare this Compact, which consists of two components: the Comprehensive Refugee Response Framework (CRRF) and the programme of action. The latest draft of the GCR namely, the Third Draft was published on 4 June 2018. The final text of the Compact will be adopted by the UNGA later this year. This post reviews the Third Draft with a view to establishing whether the Global Compact on Refugees will fill the gap in the existing global refugee protection regime relating to burden sharing. 

The Global Compact on Refugees and Burden Sharing

The Compact foresees burden sharing to be materialized on two levels: a global level and a region or country specific level. To begin with, the GCR introduces a global mechanism for mobilizing international cooperation. UNHCR together with one or more state(s) will organize Global Refugee Forums at ministerial level in 2019, 2021 and every four years after 2021 where all UN members and relevant stakeholders will be invited to announce concrete and mutually reinforcing pledges to support the achievement of the goals of the GCR. The Global Refugee Forums will enable states to decide on their own contributions for the sharing of burdens. It must be noted though state contributions to the responsibility sharing arrangements in these Forums will be purely voluntary. On a positive note, these Forums will also provide a setting to review fulfillment of pledges made by states in previous forums. UNHCR is to establish a mechanism for the tracking of pledges by states and other stakeholders and will report on the realization of pledges and contributions. A review mechanism may encourage states and other stakeholders to fulfill their solidarity pledges however; it is not entirely clear from the Third Draft what course of action will be taken to make sure the state promises will be kept and whether states that do not keep their pledges will be held accountable in any manner.  Clarification of this review mechanism can improve the success of these Forums and strengthen the GCR.

Aside from Global Refugee Forums, the Compact envisages establishment of region or country specific mechanisms when there is a large-scale influx and/or a complex situation where the response capacity of a host state is or will likely to be overwhelmed. Firstly, national arrangements are to be made by the host state with the participation of various stakeholders including national and local authorities, international organizations, NGOs and refugees in order to coordinate and facilitate the nationwide efforts to achieve a comprehensive policy response. The composition and working methods of national arrangements is to be determined by host states. Secondly, states that are most affected by a specific displacement will be able to seek the activation of a Support Platform. This platform is to be initiated by UNHCR with the request of host states and will provide a forum for supporting refugees as well as affected host states and communities. Within the scope of region or country specific mechanisms, organisation of solidarity conferences is also foreseen. These conferences are perceived as convenient tools by UNHCR to attract more donors and initiate structured and well-planned policy responses to refugee emergencies. Support Platforms and solidarity conferences clearly build on UNHCR’s past successful experiences such as: the Comprehensive Plan of Action (CPA). Regional and sub-regional bodies are expected to play an important role in these conferences. Furthermore, the GCR recognizes that to achieve effective burden sharing, mobilization of timely, predictable and adequate public and private funding; a multistakeholder and partnership approach; and timely collection, analysis and dissemination of data are necessary.

Will the Compact Fill the Gap?

For states which have already been willing to share the burden of others for hosting or supporting large number of refugees, the Compact in particular, the measures proposed under the heading ‘Mechanisms for burden- and responsibility sharing’ provide an excellent blueprint on which forums and tools can be used to achieve equitable burden sharing. There are three elements in the GCR which are particularly praiseworthy: first, solidarity conferences, as ad-hoc burden sharing settings can allow states to carry out case by case negotiations leaving room for situation adapted behavior and this can increase the odds for burden sharing. Second, the proposed review function of the Global Refugee Forums can indeed encourage states to fulfil their pledges. Third, the Compact envisages use of relatively new and creative forms of burden sharing such as: changing national asylum policies in to refugee-friendly ones, offering scholarships for refugees and implementing private sponsorship programmes. For instance, Canada’s private sponsorship programme which has enabled Canadian citizens to provide the financial, material and personal support to resettle refugees successfully since 1978 is incorporated to the Compact. This proves that the GCR has an innovative approach to burden sharing.

Now let us turn to the question, whether the Global Compact on Refugees will fill the gap in the existing global refugee protection regime concerning burden sharing. In theory, there are two ways to address this gap: first, through adoption of a binding instrument on burden sharing and second, through adoption of commonly agreed principles on how to achieve equitable burden sharing in the form of soft law. Many authors including Antonio Guterres, Türk and Garlick and Goodwin-Gill acknowledge that ideally this normative gap should be addressed under a new treaty or an additional protocol to the 1951 Convention. The most obvious advantage of regulating how burden sharing should be materialised in a new treaty or a protocol is that, this would create clear legal obligations that are enforceable. Yet, the main obstacle behind conclusion and adoption of such an instrument is the fact that today; very few states are willing to be bound by clear pre-determined criteria for the distribution of burdens. Thus, as noted by Einarsen and Engedahl, adoption of a new convention or protocol on burden sharing seems not likely in the near future.

The second possibility for addressing this gap is through soft law. The clearest disadvantage of remedying the gap on burden sharing with soft law is that the recommended guidance or agreed principles on burden sharing would be non-binding and states cannot usually be held accountable for their unfulfilled pledges. Considering when adopted the GCR will be soft law, this is identified as the weakest point of the Compact. Nevertheless, for a non-binding instrument to remedy the normative gap regarding burden sharing, it needs to provide clear and solid measures on how to distribute burdens equitably among states. However, as noted by Hathaway and Mandal, the Compact so far has failed to introduce any clear mechanism or concrete measures to ensure adequate compensation to the states hosting or supporting large number of refugees. Therefore, if UNHCR fails to make any substantial changes to it, the Compact will not fill the gap on burden sharing. This begs the question: ‘how can the Compact be improved?’ Not much can be done about the fact that when adopted the GCR will be soft law however, I believe there is a way to introduce clear solid criteria for the distribution of burdens in the GCR without making members of the UN reluctant to adopt the Compact.

In March 2018, Turkey proposed “inclusion of a template or road map or flow chart just for technically guiding or assisting states as to what to do during the outbreak of a crisis” as an annex to the Compact. Why not do this for burden sharing? UNHCR can provide in the Annex of the Compact not just one but different models on how to distribute the burdens in a large-scale influx situation or any other complex situations. So far, many prominent scholars including Grahl-Madsen, Hathaway and Neve, Suhrke, Schuck, Noll, Betts, Thielemann and Wall provided valuable insights on how burden can be best distributed among states. UNHCR can carefully review these proposals, add its own expertise and come up with a range of concrete and practical actions for predictable sharing of burdens. This is where UNHCR can be creative; it can propose distribution keys based on size of a state, GDP, population etc., establish certain resettlement quotas or determine a minimum amount of financial support to be provided by each state in a given emergency. If the UNHCR does this, when a Global Refugee Forum or a solidarity conference is convened, states can choose from one of the methods already provided in the Annex of the Compact and proceed with the distribution of burdens according to this method. This can save time and truly facilitate adoption of comprehensive responses to large-scale movement of refugees and other complex situations.