James Hathaway is right—the dream of those who drafted the 1951 Refugee Convention has not been realised. While millions of refugees do lead independent lives, millions more do not, being entitled only to an undignified life in camps supported by the international community.
I lament this situation as much as Hathaway does, and like him I oppose those that blame this unacceptable state of affairs on the Refugee Convention. Where we part company is when he argues that the solution lies in implementing the Convention as is. The Refugee Convention is not wrong—but its scope is limited. Implementing it fully is necessary but insufficient to fix the problems that most seriously undermine the refugee regime. Namely, there is an unfair distribution of state responsibilities and an imbalance between a binding prohibition on returning refugees, as well as a loose system of international cooperation, which means some states must host more refugees than others.
Outgoing High Commissioner for Refugees, Antonio Guterres, said at the end of his tenure in 2015 that, “…if there is one Protocol that is yet to be drafted to complement the 1951 Convention, it is one on international solidarity and burden sharing.” Equitable burden-sharing is not required by the Refugee Convention, whether in its financial or territorial modality. The Convention imposes no obligation to admit refugees, unless they show up at your border and denying them entry would jeopardise their lives or liberty. By and large, the positive (integration-oriented) provisions of the Convention take admission for granted. The Convention answers the question, “who is a refugee?” but it does not address the thornier question: “whose refugee?”
