The Arc of Protection

Reforming the International Refugee Regime

T. Alexander Aleinikoff, Leah Zamore

• Publisher: Stanford Briefs
• Year: 2019
• ISBN:
  9781503611429
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Immigration Policy
• Index: Politics & International Relations

The international refugee regime is fundamentally broken. Designed in the wake of World War II to provide protection and assistance, the system is unable to address the record numbers of persons displaced by conflict and violence today. States have put up fences and adopted policies to deny, deter, and detain asylum seekers. People recognized as refugees are routinely denied rights guaranteed by international law. The results are dismal for the millions of refugees around the world who are left with slender prospects to rebuild their lives or contribute to host communities. T. Alexander Aleinikoff and Leah Zamore lay bare the underlying global crisis of responsibility.

The Arc of Protection adopts a revisionist and critical perspective that examines the original premises of the international refugee regime. Aleinikoff and Zamore identify compromises at the founding of the system that attempted to balance humanitarian ideals and sovereign control of their borders by states. This book offers a way out of the current international morass through refocusing on responsibility-sharing, seeing the humanitarian-development divide in a new light, and putting refugee rights front and center.

1

THE INCONVENIENT REFUGEE

In a world without states and governments, we suspect, people would regularly be forced from their homes. The mightier and meaner would take what they could—shelter, land, belongings—from those for whom they felt no restraining ties of affiliation. Those forced to flee would move to a place where they could survive, namely a place with no humans, or with friendly humans, or with humans they themselves could displace.

It is only in a world of states that the forcibly uprooted become—and remain—refugees. Persons flee their homes and their communities because their state either has targeted them for severe harm or has failed to prevent the conflict and violence that makes residence at home intolerable. They become refugees by crossing an international border. Their inability to be “mere” displaced persons, pushed from their homes but able to find safety elsewhere on their own, follows from the fact that states have collectively claimed the globe; there is no open, habitable space to which one can flee. So refugees are a “problem”¹ that the international system of states both creates and must deal with. They must be let in somewhere. But where?

Stripped of home and belongings, separated from community and family, refugees assert moral and humanitarian claims that are powerful and easily understood. Since 2011, five and a half million Syrians have crossed into neighboring states seeking shelter and safety from warfare and strife. More than four million South Sudanese have been displaced outside and inside their home state in the last several years due to continued conflict. In 2017 alone, more than 700,000 Rohingya fled their homes in Myanmar due to targeted persecution against them. The claims made by these and other uprooted persons are to the conscience of their fellow human beings—and their persuasiveness is proven by the unease felt by the world community when it fails to respond.

Refugees also make claims on states qua states. Here the countervailing interests are asserted with less of a sense of shame because refugees’ requests for admission into territories of states to which they do not belong run up against a fundamental norm of the international system: that states, as a core aspect of sovereignty, have full control over which foreigners they choose to permit to enter. From this perspective, refugees make an extraordinary claim, asking states to waive their rights to control their borders—a claim based on the acts or omissions of another state and the movement of its citizens.² It is thus not surprising that states tend to view the admission of refugees into their territories as an act of humane charity and human solidarity, not as a matter of obligation or sovereign responsibility. And yet an international regime of refugee protection has evolved—albeit with fits and starts and always attuned to the overriding interests of the states that have constructed it.

THE ANIMATING AIMS AND PURPOSES OF THE MODERN SYSTEM

The uprooted have figured centrally in the human story for millennia. International concern for refugees began only in the early decades of the 20th century. A High Commissioner for Refugees was established by the League of Nations in 1921, and several “arrangements” and “agreements” between and among states sought to provide identification documents to refugees in certain situations—the collapse of the Russian and Ottoman Empires—and to foster opportunities for them to begin to rebuild their lives. But these measures, including attempts to protect Jewish refugees, came to naught in the lead-up to World War II. Hannah Arendt’s celebrated chapter in Origins of Totalitarianism on the precarious situation of refugees showed just how little the world thought it owed, as a matter of right, to the forcibly displaced in pre–World War II Europe. Pushed from their home states and denied membership elsewhere, refugees were rightless and de facto stateless—conditions that, as Arendt noted, neither scholarly writings nor hortatory declarations on the human rights of all persons could prevent or remedy.³

There is, however, an important difference between our time and Arendt’s. As she was completing her volume, the international community was meeting to create a UN agency and to draft an international convention to guarantee refugees’ rights and protection. In 1950, the UN General Assembly established the Office of the UN High Commissioner for Refugees, assigning the High Commissioner the responsibilities of “providing international protection” and “seeking permanent solutions for the problem of refugees.”⁴ The year before, the United Nations had called for an international conference to consider solutions to statelessness and the refugee problem. Statelessness was subsequently hived off,⁵ and in 1951 the Convention on the Status of Refugees was finalized and opened for state ratification.

Over nearly three dozen articles, the Convention lays out a robust set of rights and further specifies that those rights do not simply exist “out there”; they are the concrete responsibility of ratifying states to protect and enforce. The rights in question include the right to free movement within a country granting asylum; to work and start a business; to be protected by labor law; and to be eligible for social benefits, go to school, and practice freely one’s religion.

The protections guaranteed to refugees had intrinsic merit. Many echoed important values enshrined in the Universal Declaration of Human Rights, adopted just a few years before. They also had instrumental value. The possession of rights—to work, to an education, to move—would help refugees rebuild their lives, provide for their families, and take up life again in peaceful human communities. Refugees in “displaced persons” camps, recipients of dwindling assistance from the international community, would instead be empowered to assume active roles in the economic and social spheres of their host societies. This would benefit the refugees and the hosting communities as well as reduce costs (human and financial) for their assistance. The Convention also included what has come to be seen as the central protection for refugees in the modern era: the guarantee against return to a country where the refugee would face persecution (known as the right of non-refoulement).

Crucially, the Convention was primarily concerned with rights that would be accorded by states of asylum, as it called for refugees to be incorporated directly into their economies and welfare systems. The Convention had less to say about the kinds of programs we typically associate with responses to refugee situations today, namely the provision of emergency care and other forms of humanitarian relief provided by the international community. To be sure, the statute of the High Commissioner contains a mandate to facilitate “the co-ordination of the efforts of private organizations concerned with the welfare of refugees.” But neither the Convention nor the statute established a general relief agency (as was created for European refugees during and immediately after World War II, for Palestinian refugees starting in 1949, and for Korean refugees in the 1950s). Indeed, UNHCR’s initial budget was just $300,000 per year, barely enough to cover administrative costs and salaries for the small troupe of lawyers and diplomats who took up work in its office in Geneva. This was in sharp contrast to the hundred million dollar budgets, broad assistance mandate, and substantial clout of UNHCR’s predecessors.⁶

The omission of an international assistance mandate arguably left a gap in the international refugee regime. But it followed from a certain logic. The great idea that illuminated the Convention and the establishment of the Office of High Commissioner was not to establish a global system of humanitarian relief. It was rather the guarantee of rights and the eventual restoration of membership in a nation-state to persons who would otherwise be in the situation of Arendt’s refugee: rightless and belonging nowhere.

Beyond economic and social inclusion, another element of a new regime was recognized and suggested—although, importantly, not mandated: the responsibility of the international community to help states to which refugees had fled. Sharing the burden of reception and care of refugees is an act of international solidarity, important for the maintenance and success of the regime as a whole; unless countries of initial reception can be confident that their burden will be shared, they may be less willing to admit refugees in the first place. Burden-sharing can also be viewed as a sort of insurance policy. Because no one knows where the next refugee crisis will occur, and because such crises tend to affect a small number of states intensely, a state can protect itself against an undue burden by joining a system under which other states commit to sharing in the response to refugee flows.

During the drafting process of the Convention, the UN Secretary-General had suggested a provision that would obligate states “to the fullest possible extent [to] relieve the burden assumed by initial reception countries” by committing to “receive a certain number of refugees in their territory.” But the proposal was not agreed to by contracting state parties.⁷ Instead, language was inserted in the Convention’s Preamble (which is nonbinding) noting that “the grant of asylum may place unduly heavy burdens on certain countries” and declaring that “a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot . . . be achieved without international co-operation.” No provision was included elsewhere in the Convention that established a legal obligation of responsibility-sharing or a formal structure for accomplishing it.

The absence of any such mechanism is a driving force behind the regime’s present-day dysfunction. The vast majority of today’s refugees reside in just a handful of developing states. At the time of the Convention’s drafting, though, a formal sharing mechanism may have seemed unnecessary. In the postwar years, the (Western) international community had put in place collective programs that, taken together, remain unprecedented. Before UNHCR opened its doors, third states had already resettled more than a million refugees from Europe. By the time the Convention entered into force in 1954, the Marshall Plan—portions of which were tied specifically to refugee reception and care⁸—had provided asylum states in central and western Europe with financial support on an unprecedented scale. The Convention itself can be seen as merely the third component in this broader sharing formula. Following the out-migration of resettled refugees and the influx of financial support, it called upon asylum states to assume responsibility only for what had come to be known as the “residual caseload” of refugees.

Of course the refugee phenomenon did not end with the assimilation of these remaining postwar refugees. Nor, as we shall see, did states keep up their ends of the bargain when it came to resettlement and financial aid in the wake of new displacement crises. Only asylum-state responsibility was institutionalized. The failure to codify a broader responsibility may have made sense when other states were already stepping up. It is a major cause of the challenges facing the international regime today.

A SYSTEM BASED ON STATE INTEREST

Refugees represent a perturbation in the modern international system.⁹ That system presupposes a world divided cleanly into sovereign states exercising authority over a defined territory and a defined population (its citizenry). Extraterritorial jurisdiction is narrowly construed. Control of a state’s borders and citizens is seen as an inviolable aspect of sovereignty. Citizens, of course, may enter other states but only—legally—with the permission of those states and without losing the citizenship of the home state. Refugees, on this account, are anomalous. First, they are de facto stateless; belonging to no state, they threaten systemic coherence. Second, they seek (demand) an uninvited entrance to another state and ask that they not be returned, thereby undermining the state’s sovereign control of its borders and challenging the home state’s authority to define its members.

Several solutions to this refugee “problem” are conceivable. States might attempt to forcibly intervene in the state from which refugees are fleeing, in order to remove the cause of the flow and permit safe return. But this constitutes a rather dramatic affront to notions of state sovereignty on which the state system is based. The Refugee Convention makes no reference to such a response, choosing to chart a path forward rather than back. A second solution would be to deflect refugee flows, either to a place where they would be welcomed or to some kind of international space where their presence would not compromise the sovereignty of the intended state of entry. These measures have been adopted, with unhappy results.¹⁰ The third—and the one adopted by the post–World War II regime—is to have refugees first seek safety in a neighboring state and then to pursue a permanent resolution of their situation, either by returning home when it is safe to do so (voluntary repatriation), by attaining settled status in the country of first asylum (local integration), or by relocating permanently to a third country (resettlement).

Of course the idea that refugees undermine state sovereignty in the first place is belied by the fact that states themselves, in their capacity as sovereigns, have created and committed to a system of international protection. But there is a more hard-edged version of the claim that the international refugee regime serves rather than constrains state sovereignty: the very existence of the refugee “problem” acts to reinforce the state idea. As a conceptual matter, it positions uprootedness as an aberrant state of affairs and residence in one’s home country as the normal condition. The real-life exertion of state power in the face of refugee flows, meanwhile, permits states to show in dramatic fashion strength or beneficence as they affirm their authority to control borders, either permitting entry for humanitarian reasons or refusing it in the name of national interests and national security. Similarly, states may either offer or deny opportunities for integration or resettlement. Citizens of the state recognize in such actions the “goodness” of the state when it accepts refugees and, even more so, the raison d’être of statehood when it keeps refugees out. Indeed the power of the state is seen as that much greater when it is asserted—for purportedly legitimate reasons—against persons with especially compelling moral claims.

These political benefits of constructing and maintaining a refugee regime are by no means evenly distributed. From the beginning, the international refugee regime was a project largely of the West (even as most refugees were and are accommodated in the South). States that did not see the Convention as serving their interests—most particularly, the Soviet Union and its allies—removed themselves from the drafting and ratification of the 1951 Convention, arguing that the West was seeking to protect as “refugees” citizens who could and should return to Eastern states. Colonized states, including many that now host the largest numbers of refugees, were not invited to the negotiations to begin with.

These conceptual and political considerations, when joined with humanitarian concerns, supported the establishment of a formal system for responding to the refugee problem that bore the mark of (Western) state interests. So too the limits and restrictions built into the system at its founding make clear the role that state interests played in the regime’s construction.

Most important are the compromises at the core. The refugee regime, to succeed, needed to offer forced migrants a country in which to find refuge pending a solution to their de facto statelessness. But the concept of state sovereignty would bend only so far. Somewhat paradoxically, the Convention provides rights to persons recognized as refugees (including the crucial right not to be returned to a state where one would face persecution); but it provides neither a right to enter a country to apply for asylum nor a right to be granted asylum if a claimant comes within the Convention’s definition.¹¹ These were deemed matters of state discretion, fundamentally related to sovereign control of a state’s borders. Hence, as noted above, the Convention takes the easy route: it simply begins from the premise that refugees are already present in the territory of a foreign state—almost invariably one neighboring their own.

This preservation of state authority would limit obligations of states toward future refugees. At the same time, the Convention restrictively defined current refugees to whom its guarantees would apply. By its terms, i...