Commitments and compromises: will the world be able to secure a better deal for refugees?

Refugee rights are reserved for the few lucky enough to evade the sophisticated deterrence regime, while the vast majority of the world’s refugees are referred to a life in semi-permanent limbo.

Thomas Gammeltoft-Hansen
7 December 2017

Following his briefing to the United Nations Security Council, UN High Commissioner for Refugees Filippo Grandi speaks with the press on November 2, 2017. Albin Lohr-Jones/ Press Association. All rights reserved. Every minute, 20 people are forced to flee their homes somewhere around the globe, half of them are children. In New York and Geneva another clock is ticking, as state leaders are struggling to negotiate a new global agreement for refugees. The Global Compact for Refugees – as the agreement is formally called – must be finalized by September next year, which is the two-year deadline states gave themselves at the world’s first UN summit dedicated to refugees and migration last year.

The new deal places governments and the United Nations High Commissioner for Refugees – who is leading the negotiation process – in a bind. On the one hand, the compact is the principal response of the UN to the growing refugee crisis and it is essential to get broad agreement. On the other hand, with xenophobia and populism on the rise in many countries, the political appetite to enter into new commitments and seriously reform the existing system is at an all-time low. In other words, aim too high and several of the 193 countries who signed on to the 19 September 2016 New York Declaration risk dropping out; aim too low and the compact is likely to become nothing but a paper tiger.

No roadmap

That the global refugee regime is in need of reform is hardly in dispute. Along with rising numbers of refugees, the responsibility for providing protection is being concentrated in fewer and fewer hands. More than 80% of all Syrian refugees are currently hosted by just five countries – Turkey, Lebanon, Jordan, Iraq and Egypt. Meanwhile, developed states have spent the last two decades developing ways to block or deter refugees from arriving at their territory – from extended border controls on the high seas to various deals with neighboring countries to prevent onwards movement and ensure expeditious returns. The result is a world where refugee rights are reserved for the few lucky enough to evade the sophisticated deterrence regime, while the vast majority of the world’s refugees are referred to a life in semi-permanent limbo, with no prospects for integration and intimately dependent on constantly underfunded humanitarian aid. 

The current legal framework, the 1951 Refugee Convention, provides no roadmap to ensure responsibility-sharing – neither financially nor in the form of redistribution of refugees. UNHCR’s record budget for 2017 is still substantially lower than the amount US consumers spend each year on Halloween decorations, costumes and candy. Some countries have annual quotas to resettle refugees. Yet, fewer than 1% of all refugees are afforded this opportunity and, with current domestic concerns about refugees, several longstanding supporters of resettlement have recently withdrawn their backing. Just last month, President Trump capped resettlement places in the United States at 45,000 for 2018, down from the 110,000 allotted by Obama for 2017. Denmark, which like the United States has resettled refugees every year since the 1980s, uniquely decided to abandon resettlement for both 2016 and 2017.  UNHCR’s record budget for 2017 is still substantially lower than the amount US consumers spend each year on Halloween decorations, costumes and candy.

The 1951 Refugee Convention also leaves issues like the determination of refugee status wide open – indeed even the word ‘asylum’ was considered too political to include anywhere in the convention text. Moreover, developments in the last decades have prompted calls for review or amendments, in terms of who is entitled to protection and how far states are obliged when engaging in various forms of international cooperation.

Several commentators have thus pushed for the compact to fill at least some of these normative gaps and expressed hope that it will at the very least pave the way for subsequent legal developments, such as an add-on protocol to the Refugee Convention.

Global Com-pact

To assess the likelihood of any such possibilities it is, however, necessary first to understand what kind of animal the Global Compact for Refugees is in the zoo of international politics and law. The term ‘compact’, or simply ‘pact’, has become increasingly popular in diplomatic negotiations over the last decade and a half. In 2000, the UN launched its Global Compact, a set of principles on corporate social responsibility which businesses can endorse and report upon. The term has similarly been used by the EU in regard to various deals linking refugee protection and livelihoods for refugees and migrants to broader packages of material support, international trade and export benefits with respect to key refugee hosting countries, such as Jordan and Lebanon.

As the word suggests, a com-pact may be conceived as a bundling of different agreements across actors and issues. They often involve both state and non-state actors, for example the corporate sector or NGOs, and tend to emphasize best practice and issue-linkage as means to ensure cooperation and accountability in areas where direct reciprocity and formal legal agreements are difficult to achieve. In sum, compacts as a choice of instrument tend to place the emphasis on political and practical cooperation as opposed to legal commitments.

For those who had hoped that a new agreement on refugees would come to fill some or all of the legal gaps above, the eventual Global Compact on Refugees is thus bound to disappoint. The September 2016 New York Declaration commits states only to adopt a non-binding agreement, mobilizing states around certain principles and a common plan of action. There is a notable absence of legal language in the declaration, the emphasis being rather on different political commitments and processes. Indeed, the non-binding character of the compact seems to have been perceived as a precondition of broader state support.

As such, the Global Compact for Refugees plays into a wider trend in international politics as states are increasingly relying on political rather than legal agreements. Non-binding agreements are often preferred by states: they can respond more quickly, with less constraint and more flexibility. In addition, the more flexible character of these instruments may help overcome the traditional boundaries associated with international law in terms of allocating accountability to a broader mix of actors, including international organizations, the private sector and NGOs.

From the perspective of refugee advocates the obvious concern is that such agreements tend to be much less specific in terms of the commitments and guarantees set out. This applies to the Global Compact for Refugees as well. The scope is deliberately narrow and early attempts to insert firmer commitments in regard to resettlement or financial responsibility-sharing were roundly rejected at the 2016 UN summit. The closest thing to a commitment to responsibility-sharing in the New York Declaration is the ambition of ‘a more equitable sharing of the burden and responsibility’, which in its formulation moves somewhat beyond the emphasis on ‘international cooperation’ set out in the preamble to the 1951 Refugee Convention. The formulation, however, presents a rather abstract goal with little if any normative specificity. Any prospect that the compact might fulfil such a role would thus necessitate a deeper negotiating mandate.

Among refugee and human-rights advocates there is often an implicit assumption that ‘soft law’ agreements of this kind will eventually solidify into some form of legally binding instrument, as has been the preferred form of international cooperation since the end of the Second World War. Yet, in several policy areas non-binding agreements today constitute a primary reference point, with few prospects for crystallization into hard law. States may prefer the sometimes contradictory language of soft law instruments to retain political maneuvering room, and the compact may well be it in terms of UN agreements on refugees for the foreseeable future.

Access and hydroponics

So what is to be expected from this new deal for refugees? Despite obvious shortcomings, the final Global Compact on Refugees may still come to have a considerable impact on policy. At its heart is an aspiration to reform the way refugee protection is conceived and delivered. Rather than humanitarian aid and camp-style management of refugees, the new model emphasizes development perspectives and the social inclusion of refugees into host states’ societies. The key is to enable access to labor markets, education and national healthcare from the very start. To achieve this, the new framework will bring together a broader set of actors, including financial institutions, and invest more in social innovation. For instance, hydroponics is being piloted in some countries to give refugees and host communities the capacity to grow sufficient crops in areas with limited water. Rather than humanitarian aid and camp-style management of refugees, the new model emphasizes development perspectives and the social inclusion of refugees into host states’ societies.

Some see these as the first steps towards the gradual development of a new paradigm for refugee protection, conferring upon refugees more agency and self-reliance through smarter and more large-scale economic investments, with increased room for refugee entrepreneurship. While such developments should be welcomed, they must however not leave behind those less capable of participating in the economy, for example the elderly, disabled persons and unaccompanied minors. It is also important that increased self-reliance is not used as a pretext for premature withdrawal of aid.

Despite the lack of appetite for new binding rules, the new provisions may also indirectly help bolster support for refugee rights. Both the New York Declaration and the final compact will most likely provide a strong affirmation of the existing legal framework, which in the political context of the negotiations was not a foregone conclusion. Many important refugee-hosting countries which have signed the declaration are not party to the 1951 Refugee Convention, so the compact may also help strengthen respect for refugee rights in these countries.

Major opportunity

More generally, even as a soft law instrument, the compact has the potential to shape and progress the normative framework of refugee protection. Soft-law instruments often play a ‘norm-filling’ role by setting out common principles, commitments and understandings in regard to existing rules of international law and their interpretation. The Global Compact on Refugees represents a major opportunity, not just to ensure continued state support for international law, but also to address interpretive gaps and clarify the relationship between different legal regimes. At a time where states are increasingly mimicking the tax evasion strategies of transnational corporations in trying to circumvent or shift their human rights commitments to migrants and refugees, this is extremely important.

For the compact to play such a role, however, it is essential that the final text properly integrates relevant rules in international law and draws on the large corpus of standards and principles developed over recent decades.

In sum, while the Global Compact on Refugees is not what everybody hoped for, it should not be seen as a paper tiger either. Under the right circumstances, the compact may well come to shape the interpretation of international law and advance new modes of working to ensure protection of refugees on the ground. Yet this potential depends on the degree to which states and the UN High Commissioner for Refugees are willing to push for more principled language, responsibility-sharing and genuinely new thinking in the final text under negotiation.

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