The international refugee regime and the challenges today

And each displacement is sufficiently the same as the one before, and yet subtly different, requiring past judgements to be refined and finessed, and calling for new eyes to look at old problems and come up with, perhaps, new solutions – not that it ever quite works out that way, of course.

It is 70 years since the General Assembly adopted the UNHCR Statute and a Geneva Conference settled the text of the 1951 Convention relating to the Status of Refugees. Both seem to have stood the test of time, notwithstanding their inadequacies; but on that, we will have to see...

By way of introduction, however, I want to turn back the clock another 30 years, and to note that it is 100 years since the appointment of Fridtjof Nansen as the first High Commissioner for Refugees in 1921. In that year the world was apparently simpler and the problem of refugees appeared to admit more readily of solutions. Indeed, with regard to one group of Assyrians in Iraq in 1920, the British Government approved their being supplied with ‘rifles and a few mountain guns’ and left to make out as best they could...

But at that time, three years after the end of the First World War, refugees were very much an agenda item among States then newly organising in a League of Nations which was not immediately able to cope with a population without national protection. Could international law, or international organisation, or a combination thereof, provide any answers?

As the Russian civil war drew to a close, Gustave Ador brought the urgent problem of several hundred thousand Russian refugees to the attention of the League Council; he mentioned 800,000, but the number in fact was a least one and a half million. Many were adrift and without protection, written off by their country of origin, with no prospect of settling locally, of finding employment, let alone of moving on to other countries. Relief was not enough, the resources of voluntary organisations were rapidly diminishing, and many saw the League as the only organisation able to overcome the political and social difficulties and come up with solutions.

Governments agreed that something had to be done, and the idea of a High Commissioner took root – someone who would define the legal status of the refugees, organise their repatriation or allocation to other States, find them productive employment (a recurring theme) and, together with charitable organisations, undertake relief work.

What is significant at the time is the acceptance of a range of factors as relevant drivers of displacement: conflict, statelessness, famine, and epidemic. It was not disputed that they gave rise to movements across frontiers, and that something had to be done. But what, exactly? 

Even though law and anything resembling individual rights were not immediately part of the solution, certain basic principles were emerging: that refugees should be able to identify themselves; that refugees should enjoy freedom of movement, if they were to move to where work was available; that national labour markets should be open to refugees, where equality of treatment should be the norm. 

Above all, however, it was taken for granted that no one should be sent back to their country, in the absence of sufficient guarantees of security – a point on which the 1921 Conference had agreed, even before the appointment of the High Commissioner. This fundamental position of principle was practised through the 1920s, long before the word non-refoulement entered the vocabulary of protection.

Meanwhile, Nansen had secured the agreement of governments in 1922 to issue identify certificates to Russian refugees – a simple administrative step which was highly instrumental in their ultimately finding solutions. Almost all League members adopted the system, together with Germany, a non-member, and it was extended to other groups of refugees through the 1920s and the 1930s.

This was a key development for Nansen, who saw his primary goal as promoting refugee self-reliance, if not where they were, then through ‘resettlement’ in other countries where work was available or the cost of living was cheaper. Needless to say, he regretted that governments had spent so much on short-term maintenance, rather than on facilitating employment or productive enterprises.

The challenges of modern times: the 1951 Convention

Many of the shortcomings of the emerging regime were noticed at the time. Not only did millions of refugees fall outside the ‘safety net’, but it was increasingly difficult for refugees to find employment in a time of economic depression, borders were tightening up, and the League itself was entering its period of decline. Totalitarianism was gaining ground, League members were engaging in aggressive war, and the early idealism was slipping away.

The Second World War led to many dramatic changes, and in due course to the adoption of the UNHCR Statute in 1950 and the conclusion of the 1951 Convention relating to the Status of Refugees. Today and together with customary international law and international human rights law, they constitute the basic building blocks of the present refugee regime.

Although updated by one protocol in 1967, no other international instrument has emerged in the past 70 years, despite increasing numbers of refugees travelling farther and farther in search of refuge, the protracted and intractable nature of displacement, the lack of formal ‘distribution’ mechanisms, whether in relation to people or financial responsibility, the institutionalisation of protection rights at the individual level, and the complexity of causes and drivers.

Nevertheless, 149 States are now party to one or other treaty. Why, with all its faults, does the UNHCR Statute and the 1951 Convention/1967 Protocol retain support, and why do non-ratifying States continue to play such a part, for example, in the UNHCR Executive Committee and in the practice of protection? Before suggesting an answer of sorts, let me look at some of the challenges.

The challenge of protection

The essence of refugee protection today can be stated quite simply. The refugee is someone whose status is defined and recognised by international law, both under treaty and as a matter of customary international law. He or she does have a right to seek asylum, and the search for refuge is not a criminal act from an international law perspective, whatever States may pretend. It follows that refugees in search of protection are not to be penalised because of their illegal entry or presence, and that in principle each claim must be examined on its merits.

Above all, as many years of sufficiently conforming practice have confirmed, the refugee must not be refouled. There are gaps and grey areas which States can exploit in their own interest – the gap between non-refoulement and asylum, for example, which human rights is seeking to bridge. But the core is clear, and the fundamental rules of the international refugee regime are primary in the sense that, unless there are very exceptional circumstances, they can override other important interests, commonly expressed in terms of sovereign powers. They change the picture, they lay down the conditions for subsequent State conduct (not to return a refugee to where he or she may be persecuted or exposed to the risk of serious violation of their human rights; not to penalise a refugee by reason of illegal entry; to deal with a person as a refugee, and within the framework of protection, co-operation and solutions provided by international law and its institutions). 

However and again, such primary rules do not necessarily provide solutions for every resulting problem, even if they are the essential juridical basis – the framework – on which other, ‘subsidiary’ rules may be attached. Thus, measures which ensure that those affected are not left to subsist in conditions incompatible with human dignity and inconsistent with human rights law will need to be implemented, if necessary, in active co-operation with States generally and with competent international organisations and NGOs.

The State must ensure that its obligations are implemented effectively, in good faith, and consistently with international law, wherever the agents of the State come into contact with individuals claiming protection. Presently, however, it is clear that control powers are being asserted and exercised on borders that exceed any permissible scope and undermine the rule of law.

‘Protection’ is itself driven by obligations, rooted in general international law and in community consciousness. The triggers for responsibility are knowledge of groups at risk, awareness of the applicable law, and capacity for action; but protection is a natural response of communities to those displaced and in need, even as it can also generate apprehension.

If individual States are stretched, the capacity of the international community is not, and this factor, reflecting a measure of imperfect international solidarity, is what keeps the refugee regime dynamic and constantly evolving; at least it did, until recently...

The challenge of the temporary

Experience tells us that, while some few instances of population displacement may turn out to be short term, we cannot ever count on this. As a consequence, our provision of protection cannot be temporary, but instead must be oriented indefinitely, towards durable goals: education, qualification, decent work, security and integration. Thus, over the medium to long term, we can lay the groundwork for the day of return – a day never to be known in advance and possibly never to arrive in the lifetime of the refugee.

If we are proven wrong, if return happens earlier, then we are all winners. Those returning will be that much stronger, that much better qualified, that much more able to rebuild and start again; more than that, they will be ambassadors for their country of refuge, a worthy return on our investment in their human capital.

The reality, of course, tends to be otherwise, with increasing numbers of States tending to adopt ‘temporary solutions’, as if that would somehow deter more arrivals and have no effect on those so penalised.

The challenge of covid-19

First, covid-19 has proven to be a useful distraction for governments which want to allow ill-treatment and abuse to continue at borders and on the high seas. At the same time, it has proven to be a useful vehicle for greater control over migrant and refugee populations and, indeed, over us all.

Secondly, while there have been very few formal derogations from human rights treaties, there have been many derogations in fact. This is important, because the process of formal derogation implies certain safeguards, and the absence of formal derogation means that such safeguards are missing or diluted. Oversight, monitoring, and the judicial review of police measures, among others, are absent, and there are no or fewer remedies for those detained, for example, in conditions that expose them to the risk of infection.

Thirdly, controls over movement both internally and externally have been ramped up. Even though many States have not imposed a barrier on access to protection procedures, the means for getting there have been curtailed. As we know, technology is already at the border and beyond, with drones now engaging in aerial maritime surveillance, but with little oversight.

At the level of individual decision-making, we could be moving from a rules-based order to one in which the rule is generated directly by an algorithm, not by human beings, and applied in a context where the lived experience of the refugee and migrant are not, as they should be, front and centre.

The challenge of contingency

On many occasions, the international community has been reminded that if States generally do not respond to the needs of refugee-hosting countries, they may find that they are unable to live up to and abide by basic rules, such as non-refoulement, and that this in turn will likely contribute to what governments dislike, namely, secondary movements of refugees in search of a solution.

UNHCR has recently noted that ‘the international refugee protection system depends on international cooperation and responsibility sharing’, and that externalization simply shifts asylum responsibilities elsewhere and evades international obligation.

Since the Tampa incident some 20 years ago, the jury is out, but the experience of refugees transferred over many years from Australia to Papua New Guinea and Nauru, ostensibly for offshore processing, is not encouraging. Irreparable harm was done to the health and well-being of hundreds, owing to indefinite detention, the miserable standard of accommodation, and threats to their security, among others.

The challenge of international solidarity

Apart from being, self-evidently, a good thing, what is ‘international solidarity’? Where do we find it? What are we to do with it? And what does it have to do with protection?

In French, from which the English is a relatively recent borrowing, ‘solidarité’ refers to a relationship between people who, having a community of interests, are linked one to another, and so to the sense of a moral duty towards other members of a group, based upon an identity of situation, of interests. In either case, ‘solidarity’ seems most apt to figure in the regime of protection. Here, ‘international solidarity’ is the necessary antidote to that national egoism which might otherwise frustrate observance of the fundamental principle of non-refoulement or the achievement of durable solutions.

So far, so good, you might think, but what does it actually mean in concrete terms? How can it be translated into the international field of refugee protection? And what is refugee protection, and how might it and refugees benefit from international solidarity?

Protection can be understood as using ‘the law’ and the obligations of States to ensure that refugees and those in search of protection are not penalized, expelled or refouled, that every refugee enjoys the full rights to which he or she is entitled as a refugee, that his or her human rights are guaranteed and, above all, that the refugee has an opportunity for a durable solution.

Push-backs, however, are occurring, in Africa, in Asia, in Europe, and in the Pacific, and what is significant are the numbers of asylum seekers who report being denied disembarkation, or access to the asylum process, or being physically abused and assaulted, or whose property is stolen or destroyed.

The law says it should be otherwise. The excessive use of force potentially violates the right to dignity and integrity, contrary, among others, to the provisions of international human rights treaties, such as the 1966 International Covenant on Civil and Political Rights, the 1984 Convention against Torture, the 1989 Convention on the Rights of the Child; not to mention regional instruments, including the Bangkok Principles or the African, American or European human rights treaties.

The ultimate challenge, that of political will

What is not in the Convention is significant. When States came to draft the 1951 Convention, they expressly declined to write in specific obligations on co-operation, which the then UN Secretary-General saw as crucial to an effective regime. His suggestion for an article on burden-sharing was rejected, as was his proposal that States give ‘favourable consideration’ to admitting refugees. Similarly, one of the largest gaps in the Convention system is the lack of any provision determining which State should be responsible for deciding on claims for protection.

It is precisely in these areas – causes, co-operation and responsibility – that the international refugee regime reveals its incompleteness, and this helps to explain many, if not all, of the actions taken by States, particularly unilaterally, and of the concerns which many also share.

Within the international refugee regime at large, the bases for discourse and cooperation have been strengthened over the past seventy years, but the politics remain resistant to such fundamental changes as are needed, either to deal effectively with causes, or to bring about prompt and equitable solutions consistently with the demands of international justice.

On the one hand, the international refugee regime, including the UN, UNHCR, the Convention and the Protocol, have demonstrated their dynamic character. Within the legal framework, such as the refugee definition, they have shown themselves capable of responding and evolving positively to the emerging protection needs of groups and individuals at risk, while the normative background provided by human rights has strengthened the capacity of the system to provide a principled approach to larger groups and categories of the displaced. 

On the other hand, the law alone does not provide solutions. Certainly, much remains to be done in the face of bureaucratic ineptitude and the bankruptcy of policies premised on the illusion of deterrence and the ‘value’ of cruel and inhuman practices. But there are deeper questions also; because the regime provides no answers to certain key questions, because these need to be negotiated and re-negotiated with each successive crisis – therein lies part of the answer, and part of the explanation of why the regime continues to attract support. With so much remaining negotiable, States can maintain the illusion that everything is under their control; the law, however, can still surprise them, as can the pressure brought to bear by civil society.

Of one thing we can be certain – that people will continue to move in search of refuge and security; and that others – advocates, NGOs, civil society, even governments – will continue to protect them; and that international and national law and principle will provide the means to achieve protection and solutions commensurate with human dignity and the agency of those concerned.