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The refugee problem - time for a “new order”

By Guy Goodwin-Gill - posted Friday, 3 March 2006


With 60 years or so experience now behind the UN's international refugee protection regime, it’s time for an audit. But what should be the premises of a new, revised and revived international protection system?

Beyond protection, the goals of any future international refugee protection system will surely include those which are now entrusted to the United Nations High Commissioner for Refugees: voluntary repatriation, local integration, or resettlement in a third state.

They will also surely include better provision in allocating responsibilities, a more sure funding base, and a greater involvement of, or access to, the political processes.

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These processes are essential to resolving or mitigating the factors producing forced migration, and especially to firing up the commitment needed to end protracted situations.

After 80 or more years experience of international organisations working with refugees and towards solutions, we understand the basic principles and know the objectives of refugee protection. How, then, can we best achieve ends commensurate with human worth and dignity?

Two among many possibilities suggest themselves. The first involves an approach using UN resources, but without the present-day Office of the UNHCR.

In this scenario, relief and assistance would be entrusted to other competent agencies, such as the World Food Programme, the World Health Organization or the International Committee of the Red Cross. Protection would be a matter for national governments and possibly regional institutions.

The primary emphasis would be on the early removal of the necessity for flight by engaging the collective security mechanisms of the UN or member states acting under its authority.

In present-day discussions of UN reform the notion of “the responsibility to protect” is receiving a fair amount of attention, reflecting a deep-seated concern at the international system’s failures to deal effectively with crises such as the genocide in Rwanda.

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The notion supposes an entitlement on the part of the international community to take steps to remedy a situation of humanitarian need, if the state or government responsible fails to do what is required. Its ultimate, but by no means only, sanction is military intervention on humanitarian grounds.

The notion also focuses the mind on some of the weaknesses of an international protection regime founded and constructed on early-to-mid 20th century conceptions of sovereignty. In the 21st century, it now encourages us to step out of the box which led states to insist that the UN should not get involved in costly humanitarian operations.

In addition, it proposes a fundamental rethinking of sovereignty in a way which would open up the reserved domain of domestic jurisdiction to international attention.

The notion of responsibility to protect is thus essentially “needs driven”. Applied to the forced migration context, it would see no necessity to distinguish between different types of refugees.

What it doesn’t do in its present state of evolution is provide answers to the institutional questions. Moreover, its internal logic suggests humanitarian relief operations could take the place of refugee protection, with the present rights-based approach being substituted by something else that is more discretionary or “political”. Experience tells us this approach can’t be trusted.

Humanitarian need is not the only characteristic of the refugee who is - in a very direct sense - serarching for his or her rights to be protected against violations, or simply to be recognised. For these and other reasons, the necessity for an international refugee protection system will continue.

If the institutional means are also to continue, they will need to draw on some of the qualities identified in the UNHCR’s current Statute, and on others inferred from eight decades of practice - independence, authority, impartiality, humanitarianism and accountability.

So long as borders remain and states are seen as sovereign, the international dimension will be relevant even in small things. And because serious interests of the state receiving refugees will be involved, the individual will continue to require protection.

That protection, in turn, must be provided not only by national institutions, but also by an agency with the authority, standing and competence to insist on the fulfilment of international obligations.

A “law-based” approach to international protection already exists, beginning with the 1951 Convention and other relevant treaties. And while protection is often wider than rights, it still begins with rights which ought to permeate the whole.

It is here, on the solid foundation of rights, that a truly protecting agency must make its stand and prove its worth.

The responsibility-to-protect approach should surely galvanise the international community to recognise the gaps in the UN’s humanitarian response system, but it cannot substitute for the rights-base of the present international protection regime.

Still, as former UN Secretary-General Boutros Boutros-Ghali presciently observed, an evolving UN system will require greater transparency and accountability, and more democracy.

This also applies to a future refugee protection agency, whether in deciding individual claims, administering refugee settlements, or planning grand solutions such as repatriation or resettlement.

Too often today and in the recent past such matters have been kept behind closed doors and guarded against effective review. Too often the voice of the refugee has not been sought out, and if raised, has not been heard.

If there is indeed any future for international protection, then the issues of coordination and collaboration must also be revisited. The protection of fundamental rights should never again be subordinated to woolly thinking about humanitarian action, and lives no longer jeopardised in the name of pragmatism.

A long, hard look is needed at the responsibilities of other UN and non-UN agencies to see what they can and should contribute.

Funding mechanisms also call for an equally long, hard look. An agency’s dependency on voluntary contributions leads to institutional inefficiency, reducing its capacity for both strategic and contingency planning.

What states donate in the humanitarian field is still very much a matter of sovereign discretion, and changes are urgently required here as well.

Like so much else in the refugee world, however, funding refugee protection and solutions remains a “fundamentally political problem” which will resist merely technical solutions.

Year in and year out, refugee needs combine both emergency and relatively stable dimensions, calling for a new approach such as an “International Finance Facility”. This would include long-term donor commitments, the disbursement of funds in four to five-year programs, and replenishment at regular intervals. And it would provide the predictability essential for effective relief management and solutions planning.

If the UNHCR is to continue or an equivalent agency to be established, consideration might also be given to attaching an assessed financial contribution to membership of its governing or oversight body.

A “new order” will need to amalgamate both international and national elements. Experience, particularly over the last 10 or 12 years, has shown that the international community ignores the causes of forced migration at its peril.

Refugee movements can and do contribute to instability, and thus to apprehensions for international peace and security.

The evolving order will have to respond proactively, with solutions in mind, to the challenges of internal displacement, intra-state conflict, and the demographic and political pressures attaching to persistent underdevelopment.

While maintaining its position on issues of principle, the new order will need also to factor in states’ concerns about individual threats to security, even though the connection between forced migration and the movement of individual terrorists is tenuous.

Recent and current experience underlines the necessity for rule of law oversight, particularly where governments are inclined to act in disregard of human rights and internationally protected values.

If only from a rights, solutions and protection perspective, we will need something like an Office of the UNHCR, but it must be fit for the 21st century and organised around improved accountability measures.

Some refugee operations in recent years were seriously compromised by failing to adhere to the protection mandate laid down by the UN General Assembly and backed by international law. Consequently, refugee lives were lost and rights violated.

That experience, however, also confirms the inherent strength and value of a prescribed, universal mandate, while serving as a warning against the compromises that inevitably follow from trespassing outside agency competence and authority.

Protection can be enhanced, moreover, by recognising and accepting others’ complementary responsibilities. Thus, the natural partner for a refugee protection agency in verifying conditions in countries of origin prior to repatriation is either the UN High Commissioner for Human Rightsz, or a regional human rights mechanism.

The natural partner on behalf of those displaced within their own lands by conflict is the International Committee of the Red Cross. On the other hand, the natural partner in migration-related matters has yet to be determined - the International Organisation for Migration has neither a protection mandate nor enough independence.

The UN’s 60 and more years of experience with refugee issues have also shown that a “temporary” agency is not the way to go. Staffing procedures need radical remodelling to allow the agency to expand and contract efficiently as crises ebb and flow.

Remodelling will also enable career development to blend the benefits of field and central office experience more effectively and humanely. And appropriate investment must be made in building national capacities to offset the expatriate bias of the existing system.

At the inter-state level, the enhanced accountability of a revived refugee protection agency should be matched by strengthened legal competence, particularly in relation to the responsibility already recognised on behalf of the UNHCR to supervise the application of conventions, whether refugee-specific or human rights-based.

A more effective mechanism to oversee and supervise state obligations towards refugees and asylum seekers is sorely needed. Though not reciprocal, the obligations integral to the international refugee regime are nonetheless interlocking and often contingent.

When states cross the line they must be called to account by the UN’s refugee protection agency, and by the weight of the international community behind it. Experience shows that refugee problems are not solved unilaterally or through Pacific-style solutions imposed on others, but co-operatively and collaboratively.

There will never be perfect equity between states in burdens and responsibilities, anymore than in access to the sea or the continental shelf. Life is not like that, but rather a matter requiring the sharing of burdens and responsibilities.

In short, this is a time for further evolutionary steps in the international protection of refugees, and it must be by way of the path of experience. But where will the impetus for change come from?

As history has shown, state self-interest will continue to play a role. History also suggests many governments will continue unwilling to learn from the past, preferring to underestimate peoples’ capacity for self-preservation when faced with desperate circumstances and risk to life and liberty.

That is why community-based organisations have a critical role to play now, as they did in the past, in reminding political leaders that they too may be held accountable.

Ideally the international refugee regime stands for this. Anyone compelled or constrained to leave their country of origin should be ensured protection of their human rights.

Any state receiving a refugee should be able to call on the support of other states party to the protection regime - and that states, international and non-governmental organisations, and others, will cooperate in finding solutions at an individual and global level.

The regime’s goal is to moderate the inherent tensions - states, their interests and self-interest - to protect rights and achieve solutions.

One of the many related challenges over the coming decades for states which count themselves democratic will be to integrate human rights into every aspect of public life and public action, not just as a matter of form but of substance also.

The best realisation of these goals lies not through compliance mechanisms alone. It will be achieved only when every legislator, policy-maker, and decision-maker begins by automatic, reflective reference to the standards so solemnly declared in the Universal Declaration of Human Rights and other instruments.

Equally, if any of us is serious about resolving the human rights causes of flight, then human rights must be externalised in effective, coherent and focused policies of assistance to the process of democratisation, conflict mediation, and civil society.

We can’t continue to be simply reactive, content to wring our hands in the face of forced migration. Nor can we continue to dehumanise and demonise refugees, asylum seekers and migrants and seriously expect to solve anything.

The refugee problem is a human rights problem - first and foremost for refugees themselves. But it is also a human rights problem for us so far as the demand for protection within our borders truly tests the mettle of our commitment - and the strength of our acceptance of the principle that everyone has an equal right to dignity and worth. 

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Article edited by Allan Sharp.
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This article is an edited and abridged version of the third of three lectures Dr Guy Goodwin-Gill gave in Australia in 2005 for the Kenneth Rivett Orations. Part 1 and part 2 have also appeared in On Line Opinion.



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About the Author

Dr Guy S. Goodwin-Gill is currently a Senior Research Fellow at All Souls College at the University of Oxford. He was previously the Professor of International Refugee Law at Oxford, the Professor of Asylum Law at the University of Amsterdam, and worked for over a decade for the United Nations High Commissioner for Refugees.

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Related Links
Beyond self-interest: Australia’s post-Tampa choices - On Line Opinion
Refugee Council of Australia
Refugees - we’d like to help, but … - On Line Opinion

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