Comparative Regional Protection Frameworks for Refugees

Susan Kneebone, Susan Kneebone

• Editore: Routledge
• Anno: 2017
• ISBN:
  9781351794664
• Edizione: 1
• Argomento: Politique et relations internationales
• Categoria: Politique

This collection focuses on regional approaches to refugee protection, and specifically upon the norms, and the norm entrepreneurs of those approaches. It considers how recent crises in refugee protection (such as the Syrian and Andaman Sea crises) have highlighted the strengths and limits of regional approaches to refugee protection and the importance of looking closely at the underlying norms, and the identities and activities of the relevant 'norm entrepreneurs' at the regional level. It compares the norms of refugee protection that have evolved in three regions: the EU, Latin America and the South East Asian region, to identify which norms of refugee protection have been 'internalised' in the three regional contexts and to contextualise the processes. The authors demonstrate the need for awareness of the roles of different norm 'entrepreneurs' such as states, international organisations and civil society, in developing and promoting basic norms on refugee protection.

This book was originally published as a special issue of The International Journal of Human Rights.

Comparative regional protection frameworks for refugees: norms and norm entrepreneurs

Susan Kneebone

Faculty of Law, University of Melbourne, Australia

This article analyses the strengths and limits of regional approaches to refugee protection. It compares three regions; namely the EU, Latin America and the Southeast Asian (SEA) region. It refers to two refugee protection crises to highlight the importance of regional approaches to refugee protection: namely the Rohingya “boat people” crisis which unfolded in the Indian Ocean in May 2015 and the advance of Syrian refugees towards Europe which escalated from the same period. It identifies the norms of refugee protection which have been “internalised” in the three regional contexts and contextualises the regional processes. It argues for the importance of looking closely at the underlying norms, and the identities and activities of the relevant “norm entrepreneurs” at the regional level. It concludes that regional solutions for refugee protection will be most effective when the norms have been solidly embedded in legal systems and institutions.

The focus of this collection is generally on regional approaches to refugee protection, and specifically upon the norms, and the norm entrepreneurs of those approaches. In 2015 two refugee protection crises highlighted the importance of regional approaches to refugee protection: namely the Rohingya ‘boat people’ crisis which unfolded in the Indian Ocean in May 2015 and the advance of Syrian refugees towards Europe which escalated from the same period. In each case it was the dissemination of shocking images in the global media which raised attention to the crisis: in the situation of the Rohingya it was the discovery of 26 bodies in a mass grave of smuggled Rohingya in a trafficking camp in southern Thailand in early May,¹ whereas in the case of Syrian refugees it was the single image on 2 September 2015 of the body of a young Syrian boy named Eylan. In fact both crises have been simmering for some time and arose from protracted, unresolved situations involving groups from different religious and ethnic backgrounds. The Syrian crisis is an outcome of the conflict in Syria which is now in its fifth year, and which has displaced half of the country’s population of 22 million people. The Rohingya situation is complex and long-standing, but was precipitated by the actions of people smugglers who abandoned their human cargo at sea.

Each crisis has highlighted the strengths and limits of regional approaches to refugee protection and the importance of looking closely at the underlying norms, and the identities and activities of the relevant ‘norm entrepreneurs’ at the regional level. For example, in 2009 the Rohingya situation was regarded as a ‘mini-crisis’, which led to the reinvigoration of the regional Bali Process, led by Australia. Its official title is the Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime.² Yet, the Rohingya situation was not resolved by that or any similar regional process. In the context of the current Syrian crisis, the spotlight now is on the mechanisms of refugee protection which the European Union (EU) has developed. The response of these mechanisms to this crisis will provide an insight into their effectiveness.

The purpose of the articles which make up this this collection are to identify the key actors in promoting refugee protection norms and their agenda-setting or ‘steering’ modes in the regional context; and to evaluate dominant mechanisms and discourses on regional refugee protection. Some issues considered by the articles in this special issue are whether states are the main actors in norm development at the regional level; and how international law obligations (and refugee protection norms) are conceived by states and organisations? This introduction focuses in particular on the Southeast Asian (SEA) region, because the overall refugee population in the area represents a substantial proportion of the number of refugees and displaced persons globally and yet knowledge about this region is lacking. Further, in terms of regional engagement, the situation in SEA appears to be far less advanced than in other regions which are discussed in this collection. I draw on lessons from other regions to suggest ways to promote refugee protection at the regional level in SEA, and to make some observations about the current EU situation.

The discussion is structured around three headings or clusters of issues; first, norms and refugee protection, second, norm emergence\entrepreneurs and mechanisms at the regional level, and third, whether regional fora can promote norm internalisation.

Norms and refugee protection

[R]ealists take a minimalist view of law as binding rules to which states have explicitly consented in treaties and tacitly consented in customary law … [L]iberals have an enlarged view of international law, as encompassing core community values. Finally, constructivists see international law as a discourse of identity representation and norm enactment.³

In this section I compare the norms of refugee protection that have evolved in three regions: the EU, Latin America and the SEA region. For this purpose I place myself within the constructivist paradigm as described in the above quote. I recognise the failure of international refugee law to adequately prescribe a ‘right’ to asylum, or ‘durable solutions’, which are commonly described as repatriation (or return), integration and resettlement. Whilst the Refugee Convention⁴ can be described as an instrument of human rights protection, which confers rights on asylum seekers and refugees according to their level of attachment to the host country, thus creating a hierarchy of human rights, it stops short of providing a right to territorial asylum. It did however enshrine the right of non-refoulement, from which the notion of ‘durable solutions’ has developed.

The value of the constructivist paradigm is that it brings a focus on the ethical, political and legal norms⁵ of the international refugee protection regime and corrects the perceived deficiencies of the Refugee Convention. Arguably, the two core norms of this regime are the right to asylum (freedom from refoulement) and burden sharing.⁶ As Betts explains,⁷ the right to a durable solution is an important element of international refugee protection. These components are underpinned by the notion of a shared international responsibility for ensuring protection to refugees, which can be based either upon specific terms of the Refugee Convention⁸ or upon general principles of state responsibility and international cooperation as embodied in the United Nations Charter.⁹ Within a regional context, it has been suggested that regional shared responsibility may facilitate protection outcomes by cutting across conservative individual state preferences, through promoting cooperation in protection outcomes. The presumed strength of regional approaches to refugee protection is that they lead to harmonisation of refugee protection norms, and to regional responsibility sharing.¹⁰

In this section I explain and compare the norms of refugee protection that have evolved in three regions: the EU, Latin America and the SEA region. That is, using the trichotomy which Martha Finnemore and Kathryn Sikkink have developed¹¹ (namely, emergence, acceptance and internalisation – see Alice Nah in this collection), I identify the norms of refugee protection which have been ‘internalised’ in the three regional contexts and contextualise the processes. As Paulo Biondi’s article in this collection explains, although the EU has focussed upon the right to asylum, its approach to durable solutions illustrates a failure to develop a norm of responsibility sharing. The EU focus on border control and security is in fact mirrored in the SEA region, despite the fact that the EU system is grounded in human rights, whilst in SEA the language of human rights is largely absent. By contrast, in Latin America there appears to be a greater acceptance of the norms of refugee protection and responsibility sharing, through the language...