Time to reform the way we protect refugees?

A Syrian refugee shows his ill son to a Hungarian border guard (András D Hajdú/IRIN)

International refugee law is in crisis. James Hathaway, a professor of refugee law, wrote those words nearly 20 years ago, but they could just as easily have been written today.

It’s tempting to think that Europe’s abysmal response to the arrival of around a million asylum seekers last year represents a new low in states’ obligations to provide protection to asylum seekers. But not much has changed since Hathaway wrote his 1997 article.

Governments continue to make declarations about their willingness to assist refugees and then look for every means possible to avoid their legal responsibilities towards them.

When German Chancellor Angela Merkel decided to uphold her country’s obligations to asylum seekers she was widely condemned as having neglected her duties to control migration. While other European states concentrated on doing just that, Germany and Sweden ended up taking in a disproportionate number of 2015’s new arrivals.

In 2016, we are seeing the backlash: barbed wire fences have gone up, more restrictive domestic refugee legislation has been passed, and, most controversially, the EU has made a deal with Turkey that allows it to return all new arrivals to Greece.

According to Hathaway, director of Michigan University’s refugee law programme, the only thing new in all this, is that for the first time in recent memory, “the developed world is experiencing a little bit of what the less developed world has routinely put up with”. Policies that had been fairly effective at ensuring refugees never reached European borders have broken down under the pressure of mass movements from Syria, and European governments have gone into crisis mode. The result – refugees being held in detention in Greece or stranded for months in deplorable conditions at borders – has shone a light on pre-existing weaknesses in the international refugee regime.

What might a better system look like?

Hathaway, along with a team of lawyers, social scientists, NGO activists and government officials drawn from around the world, spent a good part of the 1990s coming up with solutions to those weaknesses.

The core principle of the model they came up with was to ensure that responsibility for refugees was more equitably shared across states. The method: pre-determined quotas that would be administered by the UN’s refugee agency. A common international refugee status determination system would mean that a refugee could turn up at any border and be subject to the same process of assessment. They would then be relocated, usually within the region. Countries outside the region would provide guaranteed funding and resettlement places.

The model didn’t catch on. “It lacked a champion,” recalled Hathaway. “UNHCR wasn’t keen on it, and the idea died.”

Hathaway believes that the model may now have come of age. The so-called refugee crisis finally has the attention of leaders in the developed world, while 20 years ago refugees were largely a problem for the developing world.

“The model we’re using today is broken; it isn’t delivering results for refugees or states.”

“The model we’re using today is broken; it isn’t delivering results for refugees or states,” he told IRIN. “The refugee regime is an abject failure at this point.”

Is the Convention itself flawed?

The basis for the current regime is the 1951 Refugee Convention, drafted to protect European refugees in the wake of World War II, and later expanded to provide protection to people fleeing persecution around the world. Over the years, there have been calls from all sides to reform the Convention.

Refugee rights advocates argue that its definition of a refugee is too narrow and that it doesn’t clearly spell out states’ obligations beyond the principle of non-refoulement (that refugees cannot be returned to a country where they would face serious threats to their life or freedom). They also point out that it lacks an enforcement mechanism, so its application largely relies on the good faith of the 148 countries signed up to it.

Governments have criticised the Convention for being out of step with the current era of mass migration. Australia and the UK are among those that have argued it provides an avenue for irregular migrants to circumvent visa and border controls.

The UN refugee agency, which is responsible for supervising its implementation, has generally opposed any suggestion that the Convention needs amending. 

“UNHCR has been under pressure to reconvene the Convention for the past 10 to 15 years, but their position has always been that we don’t want to reopen the discussion because we’d end up with something worse than what we have at the moment,” Jeff Crisp, former head of policy development and evaluation at UNHCR, told IRIN.

Bill Frelick, director of Human Rights Watch’s refugee programme, describes the Convention as “a limited document on many grounds”, but one that has nevertheless been a vital tool for holding governments to account. “Having a Refugee Convention in hand, for those of us who work as human rights advocates, who don’t have political power, [it helps us] have some ability to influence the powerful,” he told IRIN.

Implementation and integration

Hathaway has always taken the stance that the problem is not with the Convention itself, but due to “a complete failure by UNHCR and states to innovate the way we actually deliver protection”.

His model would retain the Convention in its current form but completely overhaul its implementation. It would require a “revitalised” UNHCR with authority to allocate funds and responsibilities and to administer an international refugee status determination system. Hathaway argues that the budget for this expanded role could easily be generated from the money governments would save by not having to administer national systems for processing asylum claims.

One aspect of Hathaway’s 1997 model has had to be reworked for modern times. “The model initially assumed that most refugees would repatriate quite quickly. That’s not the case anymore,” he explained. “We’ve retooled the model so we work as hard on facilitating local integration as we do on repatriation.

“After a certain period, if refugees can’t be repatriated and can’t integrate locally, they would be guaranteed a resettlement spot. So we’re not going to keep producing protracted refugee situations.”

It’s not just the system…

Not everyone working in the refugee sector thinks Hathaway’s model is either practical or attainable, particularly in a climate of heightened fears about security in which refugees have become associated with terrorists in the public imagination.

Roni Amit, a senior researcher at the African Centre for Migration and Society at Witwatersrand University in Johannesburg, argues that reforms to the international refugee regime would have little meaning for the lived reality of many asylum seekers and refugees who are denied legal protection, even in a country like South Africa that has some of the world’s most progressive refugee laws.

“The best refugee legislation in the world will have little effect when those seeking to benefit from it are characterised as economic migrants or security risks,” Amit told IRIN.

She suggested that achieving reforms will depend on changing the discourse about refugees. “Framing it solely in terms of rights and obligations isn’t going to get much play,” she said. “Whoever’s taking the lead needs to do it in a way that states understand why it’s in their best interests to do this; they need to talk about the economic benefits.”

Can states be persuaded to sign on?

Frelick points out that Europe’s attempt to adopt a system for spreading newly arrived asylum seekers more evenly across member states through a relocation programme has been a huge failure, with states only agreeing to accept a few hundred of the 160,000 slated for transfer.

“I’m very supportive of the idea of a mechanism for more burden sharing,” he told IRIN. “I wish there was political will to adopt something like that.”

Frelick also questioned the likelihood of states ceding authority for doing refugee status determinations to UNHCR or some other supranational authority.

Hathaway has spent the past year talking to as many governments as he can about his model. But even he has his doubts that there is sufficient political will for any real reforms to emerge from a high-level meeting to address large movements of refugees taking place at the UN General Assembly in September.

“What I’d like to see come out of the meeting is a commitment to a global burden sharing pact and a process to allow states to sign on to that regime,” he said. “What I fear will come out of it is platitudinous declarations about how states should do more to help. If I’m right about that, we’ve missed a huge opportunity.”

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