Proposals to improve the management of refugee protection often occur in a vacuum, removed from the political constraints that affect state behaviour in the international system. Elsewhere in this series, Bill Frelick describes how this political reality limits options. Proposals emphasizing state obligations to the international community or the ceding of authority to a global body are unlikely to be followed, as many theorists of international relations will tell you. States act out of self-interest and accepting high numbers of refugees is unlikely to serve that interest. As Angela Merkel’s recent offer to host hundreds of thousands of refugees illustrates, even when countries need foreign labour and resources, accepting refugees is often a hard political sell. Those serious about advancing refugee protection must not just see these debates as distractions. Protection is political and we have no choice but to engage.
Unfortunately, many refugee advocates remain stuck in a language of obligation and universal rights. As a result, their more formalistic efforts to improve refugee protection, while well-meaning, may be far removed from lived realities and ultimately prove unsuccessful. International and even national laws often have little effect on actual levels of refugee protection. South Africa, for example, is one of Africa’s most legalized and institutionalized countries, well on par with middle-income countries across Asia and Latin America. It also boasts one of the world’s most progressive pieces of refugee legislation. In fact, its refugee law provides a more expansive scope of protection than what is found in the United Nations refugee convention or the African Union’s own protocols. From a purely legal perspective, there is little need to reform the law—asylum-seekers and refugees have most of the same rights as citizens, they are free to live anywhere and to work and study, and they have a path to permanent residence.
But this is just the law. In practice, many asylum-seekers and refugees are shut out of these legal protections and face the daily risk of detention and deportation, regardless of legal status. For asylum-seekers bringing with them often horrific stories of persecution and violence, their protection needs almost never result in refugee status and the benefits that, at least on paper, accompany it. When they turn to the courts, even legal victories rarely translate into effective, practical protection. Where states and bureaucrats side-step court decisions and regulations, legal status and formal rights often mean little in keeping people safe and fed.
