We seem to be in a period when international cooperation around refugee protection and broader forced migration issues is breaking down. We’ve seen a significant increase in the number of forced migrants globally, with UNHCR estimating at the end of 2014 that there were 19.5 million refugees and 38.2 million internally displaced persons (IDPs). The Syrian conflict has been a significant driver of this increase, with half the country now displaced as 4.1 million refugees and over 6.6 million IDPs. At the same time, the recent EU-Turkey deal appears to be violating fundamental norms around refugee protection, particularly with accusations that Turkey has been deliberately refouling refugees, and cannot ensure full protections for refugees under international law.
But these tensions reveal an ongoing set of problems in the modern international refugee regime. This regime is based around the 1951 Refugee Convention and its 1967 Protocol as well as the critical role played by the United Nations High Commissioner for Refugees (UNHCR). While the EU-Turkey deal may appear to be the most egregious recent example, we can see similar violations of international law routinely occurring. Australia has been sending all boat arrivals to two detention facilities in Papua New Guinea and Nauru since 2013, with Australian Immigration Minister Peter Dutton noting that “We are not going to allow people to settle in our country who see to come here by boat” irrespective of whether they are determined to be refugees. And yet Australia, like other states, does not seek to leave the refugee regime. In fact, its detention policies cost AU$440,000 per year per asylum seeker and the government continues to resettle 13,750 refugees a year on the other, while also being one of the top ten funders of UNHCR.
We frequently see such ambivalence around the issue of refugee protection as I argue in my 2014 book, A Right to Flee: Refugees, States, and the Construction of International Cooperation. No government has yet adopted the strategy advocated by former British Conservative Leader Michael Howard in the 2004 election that if elected, “we will pull out of the 1951 Refugee Convention, as is our right... Its authors could not have imagined that it would come to be exploited by tens of thousands of people every year.” But President George W. Bush that same year argued that the United States will “turn back any refugee that attempts to reach our shore.” And yet, no states have actually followed Michael Howard’s view and left the Refugee Convention.
In fact, while forced migration figures have risen considerably (as shown in Figure 1 below), they do not come close to the flows following the Second World War. In 1945, there were 65 million refugees and displaced persons in Europe alone. Further, in the next five years- up to the point that the Refugee Convention was negotiated and UNHCR founded – new flows in the millions were generated by the partition of India, the creation of Israel, and the Korean War. By 1950, refugees were fleeing across the Iron Curtain into West Germany at a rate of 15,000 per month, a continuous refugee flow with little prospect of ending. Facing that crisis, states still agreed to build the regime that governs international cooperation today, albeit with some modifications.
A Brief History of Refugee Protection
In fact, the idea of international refugee protection took a long time to develop. Following the First World War, the League of Nations created the first international organization, the “High Commissioner on Behalf of the League in Connection with the Problem of Russian Refugees in Europe” (its title was later shortened). The first High Commissioner, Fridtjof Nansen, was able to introduce an Arrangement system which provided first Russian and then other refugees groups with an international legal identity they could use to move between countries. But this system was ad hoc and each Arrangement needed the approval of the League.
Thus, when the decision was made by states to create the 1951 Refugee Convention, this was a significant break with past practice. It provided the first clear definition at the international level of who a refugee was, though it was initially both geographically and temporally limited. In addition, the United Nations continued the pattern set by the League of establishing international organizations to provide refugees with protection and assistance, first through the International Refugee Organization and then, from 1950 onwards, through UNHCR. States, in other words, demonstrated a clear collective responsibility to provide refugees with protection and assistance. And UNHCR effectively demonstrated that it could deal with new refugee flows, first from the Communist world and then, from the 1960s onwards, the developing world as well.
The Challenges of the Contemporary Period
Unfortunately, the significant growth in refugee numbers globally which began in the 1980s undermined this normative consensus (see Table 1). In particular, states began to limit their obligations towards refugees through extraterritorial measures and through the so-called containment agenda, designed to containmost refugees in their regions and even countries of origin in order to avoid incurring direct responsibilities towards them. Thus, Arthur Helton warned the international response to the refugee problem has evolved from one “of providing asylum in Western countries to containment of movement and humanitarian intervention to address the proximate causes of displacement in the states of origin of would-be refugees.
Table 1: Total Forced Migrants, 1970-2014
These limited opportunities for asylum in the developed world are one of the reasons that while refugee numbers were relatively constant until the Arab Spring, the number of internally displaced persons (IDPs) has grown continuously since the mid-1990s. This is not to entirely blame the containment agenda - the growth of IDP numbers is also linked to the increased number of civil wars as a proportion of conflicts and to deliberate displacement strategies undertaken by some states. And we are seeing positive work to create a global IDP protection regime based around the soft-law Guiding Principles on Internal Displacement, which have been widely accepted and institutionalized at the international and regional as well as at the state level, where a number of states have sought to implement domestic policies or legislation to protect their own internally displaced populations in line with the principles. In an important shift, the Principles have been brought into regional hard law through the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (or the Kampala Convention), though the Convention’s implementation is lagging.
Yet providing IDPs with protection and assistance is a significant and costly undertaking. To give only one example, in Darfur, Sudan, 13 years after the outbreak of conflict 2.5 million IDPs remain in camps and receive international assistance and protection (through the UN Assistance Mission in Darfur) at an annual cost of almost $2 billion.
What do these shifting patterns mean? First, I would argue that international developments since the end of the Cold War have transformed the international refugee regime. While the post-war norms, embodied in the 1951 Refugee Convention and in UNHCR continue to have resonance, layered over top of them have been extraterritorial controls designed to prevent would-be refugees from accessing the asylum system. Second, this has not only had the direct effect of limiting refugee access, but also the indirect effect of significantly increasing the numbers of IDPs. This has over the past twenty years necessitated a new form of response, anchored in the Guiding Principles on Internal Displacement and a global IDP protection regime. Thus, while we are now entering a new age of displacement, one in which the response to refugees is increasingly limited, this is partially being offset with improved protection and assistance to the internally displaced.
The Convention originally established that refugee status was limited to individuals displaced by events prior to 1 January 1951 and states could decide whether to apply this definition only to Europe, or to Europe and elsewhere. These latter limitations were removed by the 1967 Refugee Protocol.
Phil Orchard is a Senior Lecturer in International Relations and Peace and Conflict Studies at the University of Queensland, and the Research Director of the Asia-Pacific Centre for the Responsibility to Protect. His research focuses on international efforts to provide legal and institutional protections to forced migrants and war-affected civilians. He is the author of A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge University Press, 2014) and the co-editor of Implementation in World Politics: How Norms Change Practice (Oxford University Press, 2014).
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