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Editor's Note: This article is a reprint of the lecture sponsored by the Advanced Study Center on Globalization's Critical Connections: Research, Responsibility and Practice 2003-04 as part of the annual series of Cross-University Dialogue, given Wednesday, April 14, 2004.
The system of international protection of refugees in 2004
Over 50 years ago, a visionary international convention placed a positive obligation on contracting states not to send refugees back to persecution and to accord refugees in their territory a range of human rights. This is now backed up by extensive jurisprudence in developed states on how to interpret and apply the Refugees Convention to individual determinations of refugee status.
The great majority of states are now signatories to the 1951 Refugees Convention and/or its 1967 Protocol, and several states that are not signatories, such as India and Pakistan, nevertheless protect large numbers of refugees.
There's an international organization headed by the United Nations High Commissioner for Refugees (UNHCR) which is assisted by non-governmental organisations (NGOs) and other humanitarian agencies. There is an army of humanitarian warriors out there, delivering practical protection and humanitarian aid to refugees in some of the world's most difficult and dangerous places.
There are still around 10 million refugees, but this number has fallen very substantially over the past few years, mainly as a result of events in Afghanistan and Iraq. Over two million refugees went home in 2002.
Showing what it can do if it has the mind, the international community rallied around the Kosovars, airlifting them to Western Europe, North and South America, and Australia and New Zealand, to augment the protection capacity of countries in the region, like Macedonia, and to ensure that borders remained open to allow refugees to cross and obtain international protection. As a result of military action, Kosovars were quickly able to go home and resume their lives. Now let's turn the page to some much bleaker pictures.
There are between 22 and 25 million people who are displaced within their own country's borders by such things as conflict, human rights abuse, famine and natural disaster, without the protection afforded by the Refugees Convention, as they have not crossed the border.
There are more than four million Palestinian refugees today, grown from just under a million in 1950, who are cared for by the United Nations Relief and Works Agency, which, unlike UNHCR, has no remit to promote repatriation or other solutions.
After a surge of humanitarian feeling that saw record pledges for reconstruction in Afghanistan, many of those promises remain unfulfilled and refugees are returning to a difficult and uncertain future.
Well over one million Rwandans were butchered in the Great Lakes while the international community and the UN dithered about measures to keep them safe and host states closed their borders and forcibly expelled large numbers because they couldn't cope with any more refugees.
The international protection system watched while a few countries, predominantly Pakistan and Iran, with ever-diminishing international financial support, catered to six million Afghans and just under one million Iraqis over a period of 20 years. These host countries suffered lectures in international fora about how, on top of that contribution, they should agree to let all the refugees stay permanently—i.e. in refugee parlance to provide local integration, presumably because that would remove the problem.
Somali, Ethiopian, Eritrean, and Sudanese refugees have been held for years in closed camps in Kenya (for their own protection, purportedly), with inadequate nutrition, health care and security. A relative handful of them each year go to the eight or so developed states who provide about 100,000 places for resettlement each year; that's less than one percent of refugees in 2003.
UNHCR, out of its budget of about $1 billion a year, tries to provide at least one dollar per day per refugee in its care—about 18 million people—dependent on the whims of financial donor states (there being no formula-based funding arrangements) and the generosity of hosting states, which are almost exclusively poor states with their own development challenges. Eleven and a half million refugees are in Asia and Africa.
Meanwhile, developed states—with their legally sophisticated asylum systems and administrative and judicial review frameworks—i.e. the U.S., Canada, Western Europe and Australia and New Zealand, spend at an absolute minimum $10 billion on the approximately one million asylum-seekers who have reached their territory, of which only about 20 percent are refugees. This is an annual cost of $20-25,000 per asylum-seeker, or put another way, about $100,000 for each recognised refugee. Remember $1 billion and $1 a day from UNHCR for 18 million refugees and people of concern. As examples, Norway spends $280 million a year and it received only 17,000 applications in 2002. The UK alone spends three times the annual UNHCR budget.
Thus the quality of protection received is almost solely dependent on whether the refugee can find their way to a developed state. This movement is not generally direct flight from the country of persecution to a country of asylum. Many of those refugees already had access to protection in their region of origin.
The international protection system is not equitable, it is not effective, and it certainly is not efficient.
What's going wrong?
Why is it that states, with their combined power and resources, have not been able or willing to fashion a system that works?
Part of the answer lies in the public debate about refugees and migration.
Over the past five years, few issues other than terrorism, have created the same level of public and policy attention in developed states as have asylum and illegal migration.
The debate is often confused and ill-informed, and is highly polarised between States and refugee advocates.
Governments, however, are reacting to public impatience with what is perceived as abuse of asylum systems and ineffective border control.
This is in spite of the fact that numbers of asylum claims in developed states have gone down over the past decade—in total, down 20 percent 2003 over 2002 levels, and down 50 percent from the 1992 peak.
The potential victims of the resultant ever more stringent state policies are refugees genuinely at risk of persecution who are seeking a country prepared to protect them.
How do developed States perceive the problem?
The core obligation of the Refugees Convention acts as a constraint on states' sovereign power to decide who can enter and who can stay in its territory: If a person is a refugee, the state cannot remove them to a country in which they have a well-founded fear of persecution is one of the grounds set out in the Convention.
Developed countries, not surprisingly, are an attractive destination for migration from the developing world, because of their economic opportunity, respect for human rights and political stability, and possibly also because of the presence of other family members or friends.
Depending on its perception of its national interest, each state decides on how many people under chosen criteria it is going to permit each year to enter and remain. Some argue that if only all developed states, i.e. Western Europe, were to operate generous migration programs, the problem would at least diminish. However, while economic differentials remain, demand for migration will always far outstrip supply.
The critical issue is that the Refugees Convention obligation leaves the migration door permanently ajar.
So, how are states responding?
Developed asylum-system states are responding with a range of measures:
*investment in the region of origin to reduce the need to move on for protection reasons, by improving the quality of protection available there and to make repatriation sustainable
*trying to discourage those moving for migration reasons by making their destination appear less attractive, e.g. by imposing restrictions on access to welfare support for asylum-seekers, and by withholding permanent residence for refugees. While these measures may make one destination country less attractive than another, they are still more attractive overall than the asylum-seeker's region of origin
*making it difficult for the asylum-seeker to get to developed states through use of the migration control apparatus of interception, the most obvious part of which is the visa system
*attacking the mechanism used by most asylum-seekers to reach developed states and circumvent border controls—the transnational organised crime of people smuggling—through disruption of their operations, arrest, and prosecution
While these responses work to some extent, they are not addressing the seat of the problem, which is the attempted use of the asylum system to achieve a migration outcome, part of the so-called asylum/migration nexus.
Where the asylum-seeker is not a refugee, quick and efficient refugee status determination, followed by quick and resolute removal, works very effectively. However, where the asylum-seeker is a refugee who has made a secondary movement from the region of origin, removal is not available unless another country of asylum can be found.
Secondary movement is the movement beyond where the refugee had access to effective protection.
It's not a new phenomenon—indeed, it was discussed during the drafting of the Convention. But there are major differences between then and now—faster and cheaper communication and transport, and the emergence of people-smuggling as a profitable low-risk crime when compared with drugs smuggling.
The executive committee of the UNHCR has agreed on a number of conclusions about secondary movement. For example, in 1989, it exhorted refugees to stay in the country in their region in which they had found protection.
But smuggling continues to increase, and asylum-seekers continue to lose their lives—drowned, suffocated on their way—and they continue to be exploited in arrangements to repay their debt to the smuggler.
Reform and reformulation.
Driven by concern that a non-sustainable system places refugee protection at jeopardy, Hathaway and Neve, authors of "Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection," attempted to reformulate the ways in which states and UNHCR work together to apply refugee law.
The Hathaway/Neve proposal was based on five key principles:
1.the establishment of interest convergence groups of states prepared to make a binding commitment to convene, whenever a member state finds itself unable to deal with a refugee protection responsibility
2.common but differentiated responsibility, whereby clear criteria are established in advance on what and how much is to be contributed by each state in the interest convergence group, according to their capacity and preparedness to commit to physical protection, money, resettlement places, etc.
3.solution-oriented protection for the duration of risk, which accords refugees their basic rights, and makes available opportunities to develop skills and attitudes which will assist, sustainable repatriation and reintegration once conditions in the country of origin permit
4.residual solutions, so that if repatriation is not possible within say five years, local integration or resettlement is made available
5.a move away from the current notion that repatriation must be voluntary, so that once conditions are truly safe, mandated return in a dignified and rights-regarding manner should be undertaken, so that asylum capacity is continually regenerated
Central to this model is the preference for the refugee to stay in their region of origin, to maximise opportunities to engage in productive activities consistent with the local economy, and to minimise the physical and cultural distance between the country of origin and country of asylum, so making repatriation a more likely and viable outcome.
The model appears to address the problems. So what happened?
The model was either rejected or ignored, by all the players—UNHCR, states, and NGOs. No sponsor emerged who was prepared to take it forward.
Despite the inclusive way in which it was developed, despite its honest attempt to weave together the interests of all the players in a regime focused on the quality of refugee protection, has it sunk, seemingly without a trace?
The answer is yes and no.
It no doubt has had an impact with respect to thinking about these issues. Just because it's not quoted, it doesn't mean that it lacked influence.
But why didn't states endorse it?
The process of academic influence on public policy, using the reformulation model and its fate by way of illustration:
*There were some aspects of the model itself that were not palatable to states, e.g.: while it was comprehensive, fair, and sustainable, it was presented as an all-or-nothing model, requiring substantial diplomatic effort in advance of an immediately pressing need.
*It gave UNHCR considerable power, which acted as a lightning rod for some negative perceptions of parts of the UN.
*It established formal obligations in advance, removing state prerogative to establish budgets in the light of domestic responsibilities and changing priorities, and to take into account prevailing strategic foreign policy alignments.
Perhaps there was not enough attention to power/representation/participation differentiation. While all the relevant organisations were represented, those involved did not have negotiating power and their involvement in no way committed the organisationsupport.
Despite an extensive process of consultation and involvement, the model was perceived as a solution emanating from somewhere external to the system and as having a heavy NGO/refugee rights bias—indeed the opening chapters of the report itself contained highly judgmental and strong criticism of the very players who were expected to endorse the proffered solution; this created (both consciously and unconsciously) an antagonistic attitude and an assumption that the work is a critique, rather than a solution, recognising real constraints.
There was an attempt to create ownership with all actors, but it was attempted in a group context. There was no advance locking-in of key institutional players such as UNHCR, and no identification in advance of powerful and influential state sponsors.
There was minimal marketing strategy for both the launch meeting and afterwards. Such a meeting should have organised speakers in support, in order to build a climate of endorsement; funding should have been secured in advance for a pilot so that the way forward was shown, remembering that a product launch is theatre, which has been carefully scripted and rehearsed.
States, just as individuals, do things for their own reasons. The key lever for donor states was a tool to deal with irregular secondary flows and misuse of the asylum system.
The report, however, began with a criticism of donor states' non-entrE9e policies. These policies were ascribed with the motive of keeping refugees away—not the best way to gain the support of states proud of their humanitarian credentials.
The model was proposed in a protection framework, rather than a migration management framework. While both are legitimate, in 1997, the right button to push was state-interest! It is no use saying that states should be prepared to do whatever is necessary for humanitarian motives, if they are not shown directly how it can cut abuse of the asylum system for migration purposes.
Which leads to a general and somewhat obvious observation: Individual constituencies will buy into radical change if they are convinced that their interests are met. Only once that is achieved can an effective consensus by different groups with different interests be forged.
Is there an opportunity in all this for academic influence?
There are some difficult choices to be made with respect to the model, which boil down to
*whether it should stand as an historical input to the refugee debate
*whether efforts should be made by its authors to relaunch, rebadge, recycle, or modify it without losing its coherence
*whether efforts should build on it, formulating new approaches to meet the current policy imperatives
What might work?
It is unlikely that it would be possible to find a sponsor for the model now. While it may well have been a good idea before its time, or a good idea inadequately marketed, the mere fact that it was launched and gained no support seven years ago makes it suspect.
But the thinking behind it can be introduced to the current debate in a number of ways through creation of new opportunities for influence, while engaging with NGOs carefully to avoid being labelled as supporting a particular constituency, or designing new products around state formulations of the problem, being careful with labelling and presentation.
What would it take to progress aspects of the reformulation model?
The key limiting factor is lack of time and resources for the academic actors. Modest goals are therefore necessary.
Some strategies can be identified to progress aspects of the reformulation model, for example:
*a new body of research work on the migration/asylum nexus, which provides synthesized solution-oriented input to states
*writing an article, reflecting on the current relevance of the reformulation model and/or reflecting on whether it was the content, process, or marketing that precluded its serious consideration
*quiet diplomacy by supporters of ideas in the model as opportunities present
*creation of opportunities, for example through submissions to UNHCR in Convention Plus, Agenda for Protection contexts; perhaps an international conference on the asylum/migration nexus; signalling a willingness to be involved in participation in workshops on protection in the region and on effective protection; or making submissions to parliamentary processes and to state policy reviews
What lessons might be learnt regarding possible future approaches to maximise academic influence on public policy?
There's a need to decide if the academy wants to influence states' thinking, and what's important—influence or credit.
There's a need to consider whether direct involvement would be conducive to positive influence, possibly thought to be irrelevant or counter-productive because of perceived identification with ideological positions or more directly with particular political alignments. Influence may be more effective "behind-the-scenes."
There's a need to decide the level of commitment and the availability of resources, and to decide who is going to do what and how that will be done. Perhaps given the cross-disciplinary nature of much public policy, centres of excellence or brokerage to bring together academics from a range of disciplines, or from a range of institutions might be considered.
Be clear about what level of independence is required and how it would have to be manifested.
Importantly, recognize the dynamic relationship between timely research and what is relevant to governments.
Think carefully about conceptual frameworks: the choice of language and presentation is important to get and hold the sympathetic attention of busy ministers and officials. Be aware of whether it is a critique of past action or a solution to today's, or even better tomorrow's, problem that is being supplied.
The strength of academic research is its objectivity and the space to think outside the confines of current policy.
Its weaknesses are its lack of timeliness, and its common focus on critique, rather than on problem solving.
Work that is merely critical of government has a receptive audience in the advocacy sector—in some ways, there is an easy and comfortable alliance between academia and advocacy. But advocates do not make policy decisions, governments do.
A true partnership between public officials, advocates, and academics, going beyond political distrust and fears of cooptation, can yield extraordinary benefits as we all seek to cope with the policy challenges we face, whether in refugee protection or in other fields. Building that partnership is a task for both the academy and for governments. The reward lies in its significance—work that can change the lives of people for the better.
Jenny Bedlington is the principal of JennGen Consulting, a company providing public policy advice to international organizations and governments. She is the former first assistant secretary, Refugee and Humanitarian Division, Australian Department of Immigration and Multicultural Affairs.