Tag Archives: migration

“Is Mediterranean Search and Rescue a pull factor?” Or is that an irrelevant question?

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This blog series first appeared on the Border Criminologies blog, and is re-posted here. Pål Nesse is Senior Adviser at the Norwegian Refugee Council. This is the fifth and final instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective.

Migrants in Lesbos. Photo: Amanda Nero/IOM

A few years back I participated in a moving ceremony outside the Maritime Museum in Oslo, where Vietnamese refugees unveiled a monument in appreciation of being rescued by Norwegian merchant ships in the South China Sea in the 1970s and 80s. In the first row were several retired captains, some of them in their nineties, sitting next to Vietnamese people that were rescued at their orders. They were life-saving heroes – and the many hundred saved were granted resettlement in Norway. Fortunately, I never heard anyone suggesting this was an unacceptable practice, as it was a pull factor for future Vietnamese migrants.

Since then, I have visited the Italian Coast Guard in Sicily, the crew on a Norwegian oil rig support ship that rescued 1,900 persons off the Libyan coast, fishermen and others plying the seas. They all referred to the duty of rescue as an “of course” practice, something they all adhere to.

In July last year, Germany requested European countries to join a “coalition of the willing” that would jointly share responsibility for those rescued in the Central Mediterranean – and support Italy’s policy change that again permitted disembarkation in Italy, without Italy solely being left the responsibility for those coming ashore. Eight European countries responded positively. Since then, more have joined. This is one of those few recent European occasions – where the shortage of pan-European consensus on refugees and migrants resulted in a constructive protection and responsibility sharing initiative.

As I write this, the Norwegian ship “Ocean Viking” has 407 migrants on board, rescued in the Mediterranean during the last week of January. The ship is chartered and operated by MSF (Doctors Without Borders) and SOS Mediterranée. Yet, various European governments, including my own, keeps warning against this NGO activity. They claim it constitutes a pull factor for African migration to Europe, contributing to more deaths at sea. 

Academics and news channels have countered this argument based on their research and interviews with the migrants and refugees themselves. NGOs operating rescue ships claim the same.  Migrants state they took the risk of leaving Libya to reach Europe by boat, irrespective of rescue ships in the area.

But isn’t the question of “pull factor” the wrong one to start with? Any forced displacement or voluntary migration intervention in countries of origin, transit countries or potential destinations may constitute a certain degree of push or pull – based on real or perceived options and opportunities for those on the move. Rescuing people from fragile or sinking boats at sea is a humanitarian imperative, practiced by coastal countries like Italy and Norway for centuries. Even if the boat used for the transport should never have left the port of origin due to its condition, incompetence of the crew or the weather forecast, that is irrelevant to the simple duty of rescue. 

Ask any sailor.

Search and Rescue: A necessary presence in the Mediterranean as long as people are drowning

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This blog series first appeared on the Border Criminologies blog, and is re-posted here. Kyrre Lind is a field worker and spokesperson and Head of program department MSF Norway. This is the fourth instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective. 

The Italian Coast Guard rescues migrants bound for Italy. Photo: Francesco Malavolta/IOM

Last night when I wrote this piece, the search and rescue ship Ocean Viking rescued 92 people, including pregnant women and small babies, from an overcrowded rubber boat 30 nautical miles from the coast of Libya. Many of the survivors suffered from hypothermia and seasickness, and many were extremely weak and saturated in fuel.

Doctors without Borders (MSF) and SOS MEDITERRANEE have since august 2019 rescued over 1,500 people at sea in the central Mediterranean. In 2019, 14,876 people reached Malta or Italy by sea, while 771 deaths were recorded. In 2019, more than 2,000 people were evacuated from Libya by UNHCR, to Niger, Rwanda, different European countries and Canada. At the same time, the Libyan coastguard forced more than 9,000 border crossers back. About 3,000 – 5,000 remain trapped in official detention centres in Libya.

In August 2019, MSF returned to sea as people were drowning. Our actions were directed at saving their lives. We intervened because the conflict raged in Tripoli and ever more migrants and refugees were losing their lives in Libya. Throughout the second half of 2019, it often took days and weeks before assignment of a place of safety for the people we rescued. There is no established, predictable system for disembarkation of people from rescue ships and boats.

From our perspective as participants in the search and rescue, there seems to be little indication that NGO boats are a pull factor from the countries of origin. We see that reasons for leaving home are manifold. For those who already planned to cross the Mediterranean when they set on their journey, Europe is the real pull factor. They hope to obtain protection, security, a better life and a good job. However, there are also long-established migration routes from West Africa and Sudan to Libya and not everyone planned to cross the Mediterranean when they first set out on their journey. Many people we encountered tell us that they just wanted to get a job. Libya has for a long time been a country that hosts guest workers from African countries and others. The fact of the matter is that today Libya is a fragile country ravaged in civil war: lawless conditions make it easier to get a job without paperwork, but also increase the risk of exploitation and abuse. Yet, many take the chance and try to get a job in Libya.

What people tell us aboard the Ocean Viking is that the situation in Libya is the main reason why they are trying to leave the country. People tell us about war horrors, brutal violence, gross exploitation and slavery-like work conditions. Our medical staff on-board Ocean Viking see wounds and scars from beatings, cuts, burns and gunshots, the consequences of sexualized violence, and illnesses related to unhygienic living conditions. EU reports confirm how bad the situation is. IOM has expressed strong concerns about the situation and has asked for a completely new approach in the region. The people we meet say they would rather risk their lives at sea than stay in Libya.

Norway, the country where I come from, receives quota refugees from Libya (450 in 2019), and at the same time supports transit reception centres in Rwanda. However, Norway, via the EU, also supports the Libyan coastguard, which is forcibly returning people to Libya. Back on land, most of them are sent straight back to detention centres – back to the very same detention system MSF have consistently called for people to be evacuated from. Absurdly, and shamefully Norwegian politics is currently helping a few to get out of a terrible situation, while at the same time contributing to pushing people back to that very same conditions.

From where I stand, the narrative that our search and rescue activities are a pull factor for migration seems oversimplified. It is a tool used to defend the present politics, which is failing to solve the humanitarian crisis in the central Mediterranean Sea.

The duty to rescue refugees and migrants at sea

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This blog series first appeared on the Border Criminologies blog, and is re-posted here.  Erik Røsæg is professor at the Scandinavian Institute of Maritime Law and member of PluriCourts.  This is the third instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective.

Ocean Monarch 1848 by Walters. Source: Wikimedia

The search and rescue activities are a subject of long-standing legal obligations and frameworks which often become muddled and entangled in the intense political debates surrounding the issue. In this post I discuss legal obligations of states related to the search and rescue. From a legal point of view, nation states can control their borders and refuse migrants to enter under certain conditions. However, states have clear obligations towards refugees and migrants before they cross the border, including assistance at sea. Even if assistance at sea may function as a “pull factor” and encourage refugees and migrants to attempt to cross the Mediterranean, there is no legal avenue for states to avoid such assistance. Moreover, if assistance is rendered, this entails further obligations towards refugees and migrants.

The duty to rescue

There is a duty pursuant to international law for a ship to attempt the rescue of persons at danger at sea. This duty is based on a long-standing and strongly felt moral obligation among seafarers. This is stated, for example, in the United Nations Convention of the Law of the Sea (UNCLOS) Article 98 the International Convention for the Safety of Life at Sea (SOLAS), Regulation V-33. All states recognize this duty.

One implication of this rule is that a state cannot legally prohibit its vessels from rescuing persons at sea: states must accept that their vessels engage in rescue operations. In the International Convention on Maritime Search and Rescue (SAR), coastal states undertake the role to coordinate the SAR in respect of persons in specified areas (Article 2.3). There is a duty to organize such services (UNCLOS Article 98 and SOLAS, Regulation V-7).  There are no provisions in the SAR convention that the particular state in charge of a specific area can direct foreign vessels whether to assist or not. Within the 12 nautical miles of territorial waters, the state has general jurisdiction on other grounds (including the right to direct vessels how to assist or not to assist), but this jurisdiction does not extend to ships in passage assisting other vessels (UNCLOS Articles 17-18).

It is sometimes suggested that migrant vessels heading from Africa to Europe are so unseaworthy, overloaded and in such bad shape, that they are unlikely to make it to the destination. It is thus suggested that the rules of maritime rescue do not apply. I can see no legal basis for this argument. Most likely, the majority of ships in the need of a rescue have ended up in this situation because they are unseaworthy, and it would be quite harsh that passengers should pay with their lives for not having ensured the seaworthiness of the vessel. On land, persons in danger are assisted if they have driven too fast, been the passenger of a car driven by a drunk driver, had thoughts of suicide, or caused themselves illness through bad lifestyle choices.

The maritime rules of rescue also apply to stand-by rescuers, and not solely to rescue operations initiated by, for example, freighters coincidentally passing by. As such, even the ships of humanitarian organizations deployed to the Mediterranean with no other purpose than to rescue, can invoke the rules of maritime rescue. There is a long tradition of such specialized rescuers, and this is clearly reflected in the international law of remuneration for rescue. These rules stipulate that professional salvors should receive extra remuneration to compensate for their preparedness (see for example International Convention on Salvage Article 13). These provisions would be meaningless if the rules did not apply to vessels designated purely to salvage.

In sum, there is a duty and a right to render assistance to persons in danger at sea. This duty applies regardless of whether the rescue operations are believed to have an undesired pull effect, motivating refugees and migrants to travel.

Rescuees on board

Rescuers assume primary responsibility for taking care of the rescuees, but there are limits to what they can do. If necessary, the relevant authorities must intervene. At sea, nation states have the duty to actively secure fundamental human rights. This duty was reiterated by The European Court of Human Rights, which stated in Hirsi Jamaa v Italy that the 

“special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention [the European Convention on Human Rights] which the States have undertaken to secure to everyone within their jurisdiction” (Hirsi Jamaa v. Italy para. 178). 

The relevant authority is principally the state with jurisdiction, which has the opportunity to take legal as well as practical actions. This is primarily the state in which the ship with the rescuees is registered, the flag state (UNCLOS, Article 92). Coastal states have such powers pursuant to the rules of the law of the sea over vessels in their internal waters (very near the coast), and (with some exceptions) over those in their territorial waters (typically within 12 nautical miles from their coast).  Thus, these states can and must take action and have some responsibility for securing human rights on board.

It may be difficult to find a port that is willing to receive the rescuees. If no such port is found, the responsibility for the rescuees remains for the rescue vessels and the states having jurisdiction over it. It can be tempting in such cases to disembark the rescuees in any willing port. However, international law requires that rescuees should only be disembarked in a safe port (see Martin Ratowich, International Law and Rescue of Refugees by Sea (Stockholm, 2019)). This does not have to be a Western European port, but for example, Libyan ports are not considered safe ports in this respect (see UNHCR and IOM joint statement). Persons who may be political refugees are even better protected (via the principle of “non-refoulement”). If no willing, safe port can be found, the European coastal states and the flag states cannot pass the buck further and must take care of the rescuees.

Conclusion

Non-assistance to refugees and migrants at sea is not a legal option. When they are rescued, this entails some obligations for the rescuer and the states having jurisdiction over the rescuer. These obligations prevent disembarkation in an unsafe port and include a responsibility for protecting human rights of the rescuees. This is essential for the protection of migrants.

Unfortunately, even states that generally take human rights seriously often fail to honor these obligations. They ignore their responsibilities to make sure that migrants are rescued and that human rights are respected on board their vessels or visiting vessels. Furthermore, they may allow or even encourage rescuees to de disembarked in a port that is unsafe for them. This is a shameful breach of the best of humanitarian and maritime traditions.

The “pull factor”: How it became a central premise in European discussions about cross-Mediterranean migration

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This blog series first appeared on the Border Criminologies blog, and is re-posted here. Maria Gabrielsen Jumbert is a Research Director and Senior Researcher, PRIO. This is the second instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective. 

Photo: Sea-Watch via Flickr

Debates have flourished in recent years about whether the NGO-led rescue vessels in the Mediterranean create a pull-factor and encourage more migrants to attempt the risky journey across the Mediterranean. The connection between aid to migrants and the fear of creating a pull-factor is neither new, nor unique to Europe, and constitutes one of the central elements in refugee reception policies in many host countries across the world. It has also been an element in European refugee reception policies for many years, and has become particularly pregnant in recent years following the large number of arrivals in 2015, and the debate around the rescue operations at sea

This debate around the rescue efforts in the Mediterranean can be traced back to the set-up of Operation Mare Nostrum. The search and rescue mission, led by the Italian navy, was established in response to the large shipwreck of Lampedusa in October 2013, which was met with moral outrage, compassion for the victims and declarations of this brining “shame” on Europe by European leaders. The year during which Mare Nostrum was operational was also the period in which migrant arrivals increased the most. Although there were probably many driving factors for this increase, the juxtaposition of increased rescue efforts and increased migrant arrivals quickly led to conclusions that the first led to the second. While the theory was initially seen as controversial, since it was used to legitimate the need to reduce rescue capacities at a time where these needs seemed to be increasing, it has become a commonplace, widespread and generally accepted in European political circles. 

State of the art: what has been said about the connection 

The theory has been increasingly questioned and criticized by scholars in the field, including in previous posts on this blog, especially by Elias Steinhilper and Rob Gruijters. They demonstrate such an approach is not reflected in data as they compare periods of high rescue capacity and low rescue capacity (also seen in relation to the total number of arrivals and drownings in these periods). Moreover, the reports “Death by Rescue” and “Blaming the rescuers”  by researchers from Forensic Oceanography at Goldsmiths (University of London) have shown how the policies in this area led to the retreat of state-led rescue and an increase in the loss of lives at sea. They also demonstrated that NGOs filling this role are becoming the target of accusations outlined above. The most recent attempt to engage in this controversy by refuting the pull factor theory is the work of Eugenio Cusumano and Matteo Villa, who have systematically analysed the number of departures from Libya to Italy, from 2014 to October 2019. They concluded that there is “no relationship between the presence of NGOs at sea and the number of migrants leaving Libyan shores”. They also found that departures from Libya have been largely shaped by weather conditions, as well as Italian policies of “onshore containment” in Libya.

What these reports highlight is that the assumption about SAR as a pull factor is either weak or unfounded. The picture is much more complex and policy responses need to reflect that. 

The pull factor as a symptom: of what?

Despite these findings, the assumption about the SAR as a pull factor is still deeply anchored in policy and popular debate around responses to migration in the Mediterranean. It pervades policies and public discussions in different reception countries across Europe, from Greece where border crossers are stuck, to France that seeks to avoid a creation of a new “Jungle” off Calais. It is also very much present in countries like Norway, much further away from the Mediterranean and with very few arrivals in recent years (2655 asylum applicants in 2018, and 2305 in 2019, the lowest number since the mid-1990’s). This focus appears to be symptomatic of the way the EU is struggling to deal with and respond to the “migration issue”, and analyzing this debate indeed tells us several things about the state of EU policies in this area – or the state of the stalemate.

First, debates about how to solve the Mediterranean crisis over the past years have been complex, as well as intense and polarising, with seemingly few solutions in sight. In such a setting, it becomes important to point to certain causes, or ideally, actors to blame. While the focus a few years ago was to a large extent on the smugglers as the root cause and actors to blame for the Mediterranean migration, the blame is now on the rescuers, for “playing into the hands of the smugglers”. Condemning the presence of the rescue vessels also becomes a way to point to a “solution”, at the time when there are seemingly very few solutions in sight. Returning them to Libya is not legally feasible, as it is not considered a “safe harbour” (see upcoming post by Røsæg), and seeking to establish asylum reception centres in Libya also pose several legal, practical and political challenges. The fact that intense policy efforts and enormous financial spendings to reinforce European border security have not put an end to the tragic situation in the Mediterranean, with people still attempting the perilous journey, also creates a political need for someone to blame. 

Finally, the tragic humanitarian situation at Europe’s borders today is likely not the result of an inability of providing an official Search and Rescue operation, but is first and foremost a product of an unwillingness to provide better and more assistance to border crossers. This unwillingness is inherently tied together with the idea that any form of aid runs the risk of both “fixating” already arrived migrants and encouraging more to come. The humanitarian concerns, however, are not absent from European policy makers’ discussions in this area, which also constitutes the strength of the “pull factor theory”: as it is argued that is  for humanitarian reasons that we should refrain from rescuing, as these practices contribute to maintain the same humanitarian suffering. Such rhetoric is the main reason why this assumption that links the SAR and increased mobility should continue to be challenged and debated.

The controversial lifesavers: NGO search and rescue in the Mediterranean

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This blog series first appeared on the Border Criminologies blog, and is re-posted here. Post by Katja Franko and Maria Gabrielsen Jumbert. Katja is Professor of criminology at the University of Oslo. Her work is primarily concerned with borders, globalization and issues of criminalization of migration. Maria is Research Director and Senior Researcher at the Peace Research Institute Oslo (PRIO), and the Director of the Norwegian Centre for Humanitarian Studies (NCHS). Her work is primarily concerned with humanitarian and security responses to migration and border management. This is the first instalment of the themed series on the humanitarian Search and Rescue, from the Nordic perspective. 

This artwork in Copenhagen, by renowned Chinese artist and dissident Ai Weiwei, is made up of actual life jackets used by migrants crossing to the Greek island of Lesbos in search of safety or a better life in Europe. Photo: TeaMeister via Flickr

During 2016 and 2017, more than 46,000 migrants were rescued yearly by NGOs and civil society actors close to the Italian coast. The numbers have declined considerably in the past two years. NGOs are, nevertheless, still the largest single actor in search and rescue in the area apart from the Libyan coast guard, after Italy and the EU  delegated increased responsibilities on this matter to Libya during the last year. As pointed out by previous contributions on this blog, these activities have been subjected to various types of state intervention such as seizure of rescue vessels, arrests of crew members, and initiation of legal procedures against them. 

At the same time, NGO search and rescue (SAR) activities have been surrounded by intense rhetorical battles. Migration policy is a highly politicised field and positions on humanitarian rescue vary considerably, often depending on the speakers’ professions, institutional affiliations and political convictions. Attention to language is important here. The use of certain metaphors, discursive couplings and rhetorical tropes framing migrants and rescuers influences attitudes and political actions by focusing on certain aspects of the activities while suppressing others. At the most extreme, NGOs have been accused of ‘playing into the hands of human traffickers’ (Fabrice Leggeri, Director of Frontex, Die Welt, 27.2. 2017). SAR has been rhetorically coupled with human smuggling and even trafficking. As Frontex wrote in one of its reports: 

“Apparently, all parties involved in SAR operations in the Central Mediterranean unintentionally help criminals achieve their objectives at minimum cost, strengthen their business model by increasing the chances of success.” (Frontex, 2017: 32).

More recently, the French interior minister Christophe Castaner suggested (5.4. 2019) that SAR off the North African coasts represent “a real collusion between smugglers and some NGOs“. What these linguistic tropes do is to present the rescuers as deliberately creating routes for irregular migration into Europe, and thereby effectively deflecting attention away from the duty of rescue and the lifesaving efforts they are fulfilling. Within this debate, there are similar discourses that eventually create doubts around the migrants’ right to assistance, by questioning their right to international protection. This narrative is underpinned by their awareness of the risks that they “put themselves into”, thereby obscuring the fact that the right to rescue is unconditional of any legal status (yet to be defined) and the reasons that have led anyone into that situation in the first place. 

While the statements referred to here may be the sharpest and most dramatic examples of condemnation of NGO rescue operations by EU member states and agencies, a more pervasive and, arguably, more influential perception has been established in the past decade or so: that SAR constitutes a pull factor for irregular migration. While the debate on the topic has raged, with polarized views and disagreements around this assumption, this idea of SAR as a pull factor has become more widespread. The idea is probably attractive because it provides a seemingly simple explanation to a situation that is otherwise difficult to comprehend: why people are risking their lives, and what should be done about it. 

Because the pull-factor argument has become pervasive in current discussions about  responses to the humanitarian crisis in the Mediterranean, it is important to address the question by closely examining the findings of existing scientific studies on the subject, and to critically discuss what this assumption does to the policy responses in the area. This is what we aim to do in this week’s thematic issue. The contributions address the issue of humanitarian Search and Rescue from several standpoints: from a policy and legal perspective, and from the point of view of humanitarian actors who are tackling these questions on a daily basis. The contributions were first presented at a public debate that took place at the House of Literature in Oslo in November 2019, jointly organized by the Peace Research Institute Oslo (PRIO), the Norwegian Centre for Humanitarian Studies and the University of Oslo’s NORDHOST project. Conscious of the fact that migration policies are often more informed by political convenience than scientific knowledge or even reference to international legal obligations, the event aimed to bring in dialogue researchers, politicians, NGO representatives and the general public in order to discuss the nature and impact of humanitarian SAR operations. 

In the second post, Maria Gabrielsen Jumbert examines some of the existing studies about SAR as the pull factor, all refuting any direct connection and pointing to a more complex picture affecting the numbers of people crossing the Mediterranean. Her contribution then asks what the focus on SAR as a pull factor says about the state of European policies in the area.

Erik Røsæg, professor of maritime law at the University of Oslo, examines SAR from the perspective of the international law of the sea. What do existing conventions actually say about the duty to rescue, whose responsibility is it, and what it means to fulfil this responsibility? While political discourse may give an impression that there is much room for choice, Røsæg’s contribution points to the clarity and firmness of state legal obligations when it comes to SAR. 

The final two posts are contributions from the field by two NGO representatives, Kyrre Lind from Doctors without Borders Norway, and Pål Nesse from the Norwegian Refugee Council. Lind shares an account from the perspective of those participating actively in search and rescue, and who are at the centre of the “pull factor” polemic. Nesse follows up arguing that the “pull factor question” is all together the wrong question to start with: not only is the picture much more complex, but it also obscures what should be very clear, namely, the duty to rescue lives at sea.

While the contributions are critical of the discourses through which search and rescue activities have been framed in recent years, they also paint a more pressing overall picture. They show that European policies in this area have turned away from some central principles that have traditionally been seen as salient guides for political action: scientific evidence, legal rules and humanitarian principles. The contributions in this issue, and the preceding debate, show that this development is also taking place in Norway, a country that is often taking great pride in observing the above-mentioned principles. This is yet another reminder that when it comes to migration policy, there are few countries that have been able to stand firm on principles, when faced with the perceived urgency of the issue. 

The COVID-19 Resettlement Freeze: Towards a Permanent Suspension?

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This text was originally posted on the UNSW Kaldor Centre blog and is-reposted here. The post also appears as part of the PRIO blog series Beyond the COVID Curve.

Migrants boarding the bus headed towards the processing center in Amman, Jordan 2015. Photo: IOM/Muse Mohammed via Flickr

The COVID-19 pandemic has triggered the suspension of international resettlement for refugees. According to the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM), resettlement-related travel will resume as soon as prudence and logistics permit. Meanwhile, individuals and families that were set to go are in limbo for the foreseeable future. However, this is not the first time that resettlement has been suspended on account of a public health emergency – and it may not be the last.

Before the pandemic, it was already clear that resettlement would struggle to make the comeback predicted at the 2016 UN Summit for Refugees and Migrants. There had been a sharp decline in resettlement to the US, which historically took the largest number of resettled refugees, and resettlement had been suspended altogether in some traditional receiving countries, such as Denmark in 2017. There was also the manifest unwillingness of the European Union (EU) and its member states to redistribute refugees hosted by Greece and Italy during the influx from Syria in 2015–16, and the EU’s push for emergency resettlement in African states rather than the EU.

Yet, the discretionary nature of refugee resettlement as a durable solution – rather than an obligation under international law – has long caused strong and seemingly sudden fluctuation in resettlement numbers for a variety of reasons. Therefore, it is far too early to assert the ‘death of resettlement’. Rather, it’s the time to revisit key debates to provide pointers on resettlement post-COVID-19.

A volatile instrument of refugee governance: discretion and historical shocks

Resettlement does not entail a firm set of obligations under international law. Resettlement is one of three non-hierarchical durable solutions for refugees. According to the definition used by UNHCR, resettlement involves the selection and transfer of refugees from a state in which they have initially sought protection to a third state that has agreed to admit them with permanent residence status. The actual mechanisms of the resettlement process are largely unregulated by the 1951 Refugee Convention.

The discretionary nature of resettlement means that there is a lack of harmonisation as to who will be resettled across resettling countries. Groups prioritised by one country – for example women at risk or LGBTI refugees – may not be on the priority list of others. Moreover, there is a gap between UNHCR statistics on refugees put forward for resettlement and those who actually have been physically moved by the various receiving countries. Therefore, one should execise caution when reading resettlement statistics.

Furthermore, given the discretionary nature of refugee resettlement, numbers have varied significantly over time in response to external shocks. For example, the 1980s saw a decline in resettlement. This followed a nearly 40 year-period in which resettlement was the preferred durable solution of UNHCR and states for many refugee populations (though not for African refugees). Western states became increasingly reluctant to resettle people whom they considered to be ‘would-be economic migrants’. In addition, the end of the Cold War saw a shift towards temporary protection and repatriation instead of resettlement. By the mid-1990s, however, UNHCR sought to reframe resettlement as a humanitarian act, and argued in a seminal report that it was a strategic instrument of international protection by states. The clearer doctrinal separation between refugees and migrants, and the provision of ‘soft law’ guidance to states, contributed to a resurgence of refugee resettlement from the mid-1990s.

The 9/11 terrorist attacks led to a significant decline in resettlement, particularly in the US. Prior to 9/11, processing time averaged one year; after 9/11, it stretched to a two- to three-year process. Immediately after 9/11, the number of refugees resettled in the US plummeted—from more than 73,000 in 2000 to less than 30,000 in fiscal years 2002 and 2003, as the Bush administration developed more stringent security screening protocols. These protocols remained in place through the Obama administration, and were expanded under the Trump administration’s ‘extreme vetting’ protocols.

Health concerns, such as COVID-19, have also been a reason why resettlement has been delayed or suspended. With regards to infectious diseases, stigma and the fear of contagion has affected the willingness of states to resettle refugees. For example, UNHCR has decades of experience in trying to overcome medical bans to resettle HIV-positive refugees. In 2014, and noting the lack of a public health rationale, UNHCR reported that some resettlement selection missions to Ebola-affected regions in West Africa had been cancelled. Australia went as far as to suspend humanitarian visas for refugees from Ebola-affected countries.

Preserving and expanding the resettlement space

Scholarship is divided on the best ways to preserve, and perhaps expand, resettlement. Focusing on Europe, Thielemann argues that a clear, binding legal framework is necessary to strengthen resettlement. In contrast, Suhrke considers that the adoption of binding resettlement targets would only be accepted by states if the targets did not required them to do more than they are already doing. Rather than legal developments, she argues, it is political leadership (and a conducive domestic and international environment) that matter. Actual developments reflect both academic perspectives, and innovations may also help preserve the resettlement space.

In recent years, litigation has been used to preserve resettlement. The EU has adopted a binding legal framework on intra-EU refugee resettlement and the European Commission has taken non-compliant states to court.  In the US, resettlement agencies have sued the Trump administration for allowing US states to refuse to resettle refugees. In January 2020, the federal court, granting a first injunction to the plaintiffs, ‘prohibited the Trump administration from allowing states and localities to veto refugee resettlement’.

Regarding political leadership, at the international level, UNHCR has focused recently on broad alliances, including with the private sector, and supported ‘complementary pathways’ of admission to expand resettlement. Some have criticised this approach for being too top-down because the actual needs of refugees and their agency are overlooked. Canada’s response to the resettlement needs of Syrians branded it the new global leader in resettlement – although resettlement advocates note that there has been no announcement of a considerable, longer-term expansion of resettlement. During the COVID-19 pandemic, while resettlement is suspended, states, UNHCR, and civil society will need to provide strong statements supporting the swift resumption of resettlement activities and an expansion of resettlement intakes.

Though innovation is not a panacea and must be given critical scrutiny, technological innovation has the potential to expand the resettlement space as well. For instance, a project run out of Stanford University, experimenting with the use of algorithms for assigning placements for refugees, suggested that such placement – allegedly at no cost to the host economy – would increase refugees’ chances of finding employment by roughly 40 to 70 per cent, thus helping resource-constrained governments and resettlement agencies find the best places for refugees to relocate.

It remains to be seen how long resettlement will be suspended due to concerns about COVID-19. As we have seen from history, when politics or pandemics have slowed down resettlement, it has had the ability to bounce back. Eyes will be on how international organisations, states, and civil society act in the coming months to shape resettlement in the future.

The “real” transformation of migrant smuggling in the time of COVID-19

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This text first appeared on the Public Anthropologist blog and is reposted here. Gabriella Sanchez is Research Fellow at the Migration Policy Centre (MPC) of the European University Institute. Luigi Achilli is a social anthropologist currently based at the European University Institute.

Photo: Christopher Sessums via Flickr

As COVID-19 continues to spread around the world, allegations of migrant smuggling networks evolving, changing, and undergoing drastic transformations as a result of the pandemic are starting to emerge. Claims of this kind are not new. In fact, assertions of smuggling undergoing Darwinian transformations tend to follow the aftermath of border closures, ramped-up immigration enforcement controls, environmental catastrophes, civil war, military conflict and the like. The leitmotiv remains surprisingly unchanged amid changing upheavals and tragedies: migrant smuggling is evolving from a cottage industry into one dominated by highly complex transnational criminal networks.

While successfully peddled among anxious publics by law enforcement and policy makers, this recurring representation has consistently failed to account for the available empirical evidence. A plethora of ethnographic studies have dismissed the claim that crises and emergencies empower human smuggling networks by turning them into veritable criminal conglomerates that systematically enslave, kidnap and deceive masses of vulnerable and desperate migrants, especially women and children. On the contrary, a growing body of work has shown how most facilitators of irregular or clandestine migration come together for profit or partner with others on demand, working directly with migrants on a “pay-as-you-go” basis. In other words, those who we typically refer to as smugglers generally perform specific, single tasks conducive of a clandestine journey – transportation, cooking, housing, trekking across a stretch of the trajectory, etc. – for which they receive a nominal compensation to address their personal needs. They rely on their own expertise and resources, which are often quite limited and reflective of their own precarity. In fact, many facilitators are themselves migrants or asylum seekers who became stranded or unable to complete the journeys on their own.

It is presumable that things will not change radically as the pandemic unfolds. There are two dimensions in smuggling facilitation that will be important to follow in the weeks and months to come, which will give us an indication of the response of smuggling networks to the current epidemic. Both are related to the kinds of interactions that emerge among groups that rely on the same geographies in the exercise of criminal activities. We would like to examine them here.

One is market diversification – that is, the notion that actors in a specific market or activity may opt to pursue a different one in order to maximize profits. As we have witnessed in the past, claims of migrant smugglers “venturing” into the smuggling of other commodities or services, or even into radically different activities are commonplace. Our work, however, has emphasized how the protracted precarity of an already precarious group of people often pushes them, rather than into other criminal fields, into activities that lead to their criminalization. Put differently, it is unlikely that given the structure and organization of the market, smuggling facilitators seeking to temporally cope with market adjustments as a result of COVID-19 will morph into criminal networks. On the contrary, it is more likely that increased controls and enforcement makes them and the migrants they transport more prone to detection, apprehension and criminalization.

Why does this matter? Claims concerning diversification, rather than tackling organized criminal activity, have relied on the notion that people can only venture into other criminal spaces. This is, however, hardly the case among people already facing conditions of precarity, which limited resources affect the likelihood of market expansion. Even in the event the possibility of venturing into other markets exists, that is not necessarily in line with what the person may want to or be able to do. For example, Italian cigarette smugglers were reluctant to go into migrant smuggling in the 1990s. To them, losing a person to drowning would never be the same as losing tobacco, which could be easily replaced. In the US, women who worked housing migrants in their homes would return to low-paying jobs in the service industry during times of low demand, rather than venturing into markets like drug trafficking, which carried more stigma and higher risk in case of detection. As changes and restrictions to mobility as a result of COVID-19 responses are lifted, continue or increase, it is also likely that other criminalized actors and the goods and/or services they peddle gain prevalence, and that struggles over territory, clients and resources emerge. And yet, it will be those operating individually or casually in the facilitation of irregular migration, along with migrants themselves, who will be most at risk of being impacted by territorial and market struggles coupled with COVID-19 responses and their migration restrictions and controls, given the disposability of their lives.

A second notion is market convergence. With the term, the relevant literature broadly refers to the coming together of seemingly different criminal markets. Researchers and other commentators have written about convergence as related to migrant smuggling. In the case of the Central America- Mexico-US migration corridor for example, the alleged takeover of migrant smuggling by drug trafficking organizations is taken as a fact. Similar imbrications have also been postulated between smuggling and terrorist organizations in the Middle East. We do not deny the existence of multiple interactions and collaborations among groups. Yet many claims are often based on sensationalist, graphic and even racist depictions that provide scant and simplistic details of the long-standing interactions between transporters and traders along specific geographies, and more specifically of how state security projects have shaped their actions. There is significant evidence of how both state and non-state actors often impose tax-like fees to groups of lesser rank seeking to operate within their specific territory. Arrangements of this kind have been documented as taking place in migrant smuggling on the US-Mexico border, the Middle East, North Africa, and the Sahel. Imposing payments and regulations, however, does not amount to groups merging or coming structurally together. Yet the dynamics concerning interactions between multiple groups sharing increasingly policed geographies pose interesting questions for the future, especially if migration dynamics and restrictions related to the COVID-19 response last long or become permanent.

The unspeakable stories of pain and tragedy migrants endure might tempt us to accept at face value the claim that as the direct result of the current pandemic, human smuggling groups will increasingly become more complex, organized and technologically advanced – a notion often summed up with/by the term “evolution.” There is, however, scant empirical data to back up these claims. Here we argue the opposite. If the COVID-19 response brings about a transformation in migrant smuggling, this will not be towards increased complexity and structure, but rather towards further individualization, fragmentation and disposability. We recognize that the pandemic might play a role in the adaptation or form of criminalized practices and on the modus operandi of groups. Yet, we argue that the real transformation of illicit markets lies in the progressive precarization of their actors. In other words, rather than organized, structured networks, we see the further proliferation of individual actors in hyper-fragmented markets. These, contrary to the dominant narrative of criminal networks as off-limits and closed, present weak or altogether inexistent barriers to participation, which yet provide scant if any paths towards the social or economic mobility of its participants. If at all, solutions to counter the spread of crime, and in particular of migrant smuggling in the time of COVID-19 should incorporate alternatives to reduce the precarity of all its actors, and their likelihood of being disposed or discarded through state-sponsored mechanisms like border and immigration controls.

SuperCamp: Genealogies of Humanitarian Containment in the Middle East

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This blog post is based on a panel presentation at the seminar: “Assisting and protecting refugees in Europe and the Middle East – politics, law, and humanitarian practices” 19 September 2019 at PRIO in Oslo, Norway.

In 2015, more than one million migrants reached Europe in the largest movement of people since WWII. In order to seize control of “irregular migration,” the EU and Schengen countries instituted a new policy of regional containment from late March 2016 that targeted migrants arriving via major land and sea routes. Moreover, European transit countries, with Hungary in the lead, strengthened border control and built new fences to deter migrants. In the Mediterranean, humanitarian search and rescue missions intensified, as did EU border patrols and surveillance. The efforts to constrain, deflect and deter migrants are likely to continue and even intensify. Effectively, a policy of humanitarian containment by the EU and Schengen member states establishes the Middle East as a “catch basin” for refugees and migrants alike. To study the origins of this dynamic, the SuperCamp project combines refugee-, border- and archival studies for an inter-regional analysis of immobility and containment.

The Middle East as a zone of containment

The Middle East region is not only a spatial container and “catch basin” but also takes on features of what can be termed a SuperCamp,where refugees and migrants are not so much hosted as held hostage. The Middle East region now forms a regional zone of containment, a SuperCamp under humanitarian government. As pointed out by Are John Knudsen (Chr. Michelsen Institute) in his introduction to the panel, the refugees’ and migrants’ mobility are circumscribed locally (host states) and regionally through bilateral- (EU-Turkey deal) and multilateral treaties (Schengen). Refugees and migrants typically lack the rights that accrue to ordinary citizens, hence depend on host states and the UN-system (UNHCR, UNRWA) for their upkeep. There are now more than 500 camps in operation, they range from traditional refugee camps in the Middle East, to various types of internment camps and “hot spots” in Europe – examples include the large refugee camps Zaatari and Azraq in Jordan, transit camps in France like the Calais “jungle” (now closed), the infamous Moria internment camp in Lesvos, Greece’s largest camp, and Cara de Mineo in Sicily, until recently Italy’s major migrant “hot spot” center. Together, the treaties and camps underpin a regime of forced immobility designed to keep refugees and migrants inside the Middle East region and outside of continental Europe.

Tracing the historical roots of encampment

In order to trace international humanitarian responses to the refugees in the Middle East, we need to go back to the mid-19th century Middle East. The history of refugee resettlement in the late Ottoman and mandate-period Middle East, shows the longer lines of this development, as discussed by Benjamin Thomas White (University of Glasgow). He traced the shift towards practices of containment that occurred as a dynastic empire gave way to nation-states, with a particular focus on the Baquba refugee camp in post-Ottoman Iraq. One core research focus is how regional displacement in the late Ottoman and early-Mandate period lay the foundations of state policies and early “encampment”.

The policy of encampment gained pace during the period 1950-2000, following the camp policy that was instituted to respond to the Palestinian refugee crisis, but later extended to other crises and regions as well. For 70 years, in a highly politicized context, the United Nations Relief and Works Agency (UNRWA) has delivered temporary humanitarian assistance to Palestinian refugees, Kjersti Berg (Chr. Michelsen Institute) highlighted some dilemmas arising from UNRWAs long-term tenure. Established in 1949, UNRWAs mandate has been limited to the “humanitarian realms” and the agency is not empowered to provide any “durable solutions” to the refugees’ plight. In sheer numbers, the Palestinian refugee population is one of the largest, and their displacement one of the most protracted and characterized by a lack of access to rights. The refugees’ “Right of Return” to Palestine is enshrined in international law, but Israel rejects their return, as well as the quest for statehood. Due to political impasse, UNRWA therefore continues to provide quasi-state services and assistance to the refugees.

Governing migration today

The years from 2000 onwards have seen the policies of containment, which are so central to refugee camps, taken even further. The containment of migrants not only involves protracted “strandedness” and immobility, but is also about governing migration through disruption and keeping migrants constantly on the move, as Synnøve Bendixsen (University of Bergen) argued in her presentation. Based on ethnographic fieldwork along the so-called Balkan route, she explored the effects of containment by the EU and Schengen member states. The Balkan region has been reconfigured as a transit and waiting zone by the ongoing bio-political policies of forced immobility. In this process, the migrant journeys, their speed, strategies and imaginaries are constituted through a humanitarian architecture that keep refugees stranded both inside and outside the EU.

In a time where migration and refugee policies are entering both public and political forums of debate in full force, an analytical project that combines specialized research fields that seldom communicate – refugee, migration and humanitarian border studies and history – provides important insight for enhanced understanding of both regional and global forces of humanitarian containment.

This project is funded by the FRIPRO-programme of the Research Council of Norway, and it runs from 2019-2022.


Norwegian Centre for Humanitarian Studies: 2019 in review

Thanks to fresh new funding from the Norwegian Research Council’s NORGLOBAL program in early 2019 to establish a Research Network on Humanitarian Efforts, it has truly been an exciting year for NCHS. Through connecting and engaging with academics, students and practitioners of humanitarianism in Norway and beyond, NCHS has been able to serve its purpose as a platform for debate and exchange.

Top 3 most read NCHS blog posts 2019

1. Sørbø, Gunnar. “Europe’s new border guards”.
2. Reid-Henry, Simon. “Do you speak humanitarian?”.
3. Sandvik, Kristin. “Safeguarding: good intentions, difficult process”.

Looking back at 2019, three thematic areas stand out as having shaped the work of the Centre, as well as humanitarian agendas more broadly speaking. The themes migration, humanitarianism in conflict, and technologization of aid are likely to continue creating debate in humanitarian forums in the new year.

Displacement and migration

The UN OCHA Global Humanitarian Overview 2020 lays out how a record number of people are currently displaced, and displacement typically lasts for longer periods of time. In early 2019, 70.8 million people were forcibly displaced, and twenty-eight of the 50 countries with the highest numbers of new displacements faced both conflict and disaster-induced displacement.

Migration policies in Europe and its neighboring regions has continued to be a hot topic of discussion in 2019, and NCHS associates have contributed to the debate by scrutinizing the securitization of migration and relatedly humanitarian aid, and the concept of humanitarian containment. The latter reflects on humanitarian actors restricting the movement of refugees and other migrants through provision of certain services in a geographically restricted area, as explored by the CMI-led project SuperCamp. In Norway, the Norwegian-registered rescue vessel Ocean Viking operated by Médecins Sans Frontières and SOS Méditerranée  reignited the migration debate, as explored in this blog post by NCHS Director Maria Gabrielsen Jumbert on whether search-and-rescue (SAR) operations encourage people to attempt crossing the Mediterranean. A public event co-organized by NCHS, with PRIO and the University of Oslo, at Litteraturhuset, gathered academics, humanitarians and Norwegian politicians from various political parties to discuss whether there is any validity to the claim that SAR in the Mediterranean act as a pull factor. The topic clearly engages, being amongst our most highly attended events in 2019.Taking a step back from air-conditioned conference rooms in a sobering reflection on migrant deaths at sea after attending a funeral ceremony at Lampedusa, NCHS co-Director Antonio De Lauri reminded us all of the immense human tragedy which lays the foundation for this politicized debate. In his words, “A sense of loss pervaded today’s ceremony. Not only for the persons who didn’t make it, but also for the idea of Europe, itself drowned with those who believed in it”.

It is not only European migration policies and refugee protection means that have been put under and analytical lens this past year. In 2019, NCHS associates have debated Turkey’s Syria policy in light of the refugee question, historical perspectives from South America in light of Venezuelan displacement, outsourcing of border control to militia groups in the Sahel, and the Cartagena Declaration and refugee protection in Latin America.

As large movements of people are likely to continue shaping policies, humanitarian response and academic debates also in 2020, we remain committed to gather different types of interlocutors to learn from each other’s experiences.

The triple nexus and humanitarianism in conflict.

Initiated at the 2016 World Humanitarian Summit (WHS), the triple nexus refers to the need to coordinate humanitarian, development and (at times appropriate) peacebuilding efforts to more effectively reach those most in need. While the concept is by no means without criticism (e.g. Louise Redver’s report on what implementing the nexus looks like from the field, or Kristoffer Lidén’s argument against merging humanitarianism with development and security post the 2016 WHS), the years following the World Humanitarian Summit has seen a push for policies attempting to enhance synergies between emergency and longer-term relief efforts, as an effort to bridge the gap between humanitarianism, development and security. Yet, we are very much still in the implementation phase in terms of nexus-programming. From an analytical point of view, the concept opens interesting trajectories in terms of where ‘the humanitarian’ ends and where other disciplines and fields of practice begin. Further, when placed in highly politicized contexts of insecurity and peacebuilding efforts, how does the upholding of the fundamental humanitarian principles fare?

The political role of humanitarian aid and the relationship between security, peacekeeping and humanitarian efforts was the main thematic focus of the NCHS Research Network mid-year meeting at NUPI in August 2019. Gathering researchers from various disciplines with different entry-points to what ‘humanitarianism’ means, in particular when applied in a situation of conflict, we were able to engage in a rich debate about concepts, definitions, and their interpretations by various actors. Amongst these, an important point of view is how policies developed by actors external to the country where the conflict takes place are interpreted by local populations, as highlighted by the seminar on the EU’s engagement in external conflicts in the Sahel led by Morten Bøås.

The politics of humanitarian action was also the topic of a special issue of Disasters on humanitarian governance, edited by Dennis Dijkzeul and Kristin Bergtora Sandvik. Sandvik and Dijkzeul have later written two blog posts based on the introduction to the special issue, titled “Humanitarian governance and localization: What kind of world is being imagined and produced”, and “New Directors in Humanitarian Governance: Technology, Juridification and Criminalization”. Amongst the authors contributing to the special issue were several NCHS associates, analyzing humanitarian policy making as a form of governance from different entry points. Kristoffer Lidén’s article titled “The Protection of Civilians and ethics of humanitarian governance: beyond intervention and resilience” explores how the principle of Protection of Civilians in conflict has ethnical repercussions in actions undertaken by states and international organizations related to humanitarian, development and security practices. Jacob Høigilt’s article titled “The futility of rights-based humanitarian aid to the Occupied Palestinian Territories” argues that the Occupied Palestinian territories provides an example suggesting that rights-based approaches in humanitarianism might be futile if not backed by political power.

Humanitarian assistance has traditionally been delivered in situations characterized by instability and insecurity. In order to reach vulnerable populations, humanitarians have thus had to establish lines of communication with local, regional and national actors. Importantly, how these relationships are formed and maintained risk affecting the way the humanitarians are perceived in terms of upholding the principles of neutrality and impartiality. This balance, including the concept of ‘humanitarian diplomacy’ and whether independent humanitarian assistance is possible in today’s conflict, were discussed at length during the NCHS annual meeting at CMI in November 2019. NCHS co-Director Antonio De Lauri brought up some of the same themes when he gave the NMBU Annual Lecture in Global Development in December 2019, titled “The Politics of Humanitarian Intervention: Militarization, Diplomacy, Compromise”.

As violent conflicts continue to cause an immense need for humanitarian assistance, and reforms on reducing silos and enhancing cooperation between humanitarian, development and security efforts continue to play an important role in humanitarian policy, so too will we continue to focus on analysis on what the implications of the interlinkages may mean theoretically and in practice.

Data and ‘the digital’.

Technological developments have shaped all corners of society over the past decades, including humanitarianism and the delivery and governance of humanitarian aid. Yet, uncritical application of new technologies in the humanitarian field risk unintended negative consequences that may be harmful to local populations and aid workers alike. In 2019, NCHS associates have continued examining the effects of emerging technologies in the humanitarian field. Kristin Bergtora Sandvik’s paper on technologizing the fight against sexual violence is a good example, where Sandvik asks critical questions about the turn towards technology in humanitarian aid, and the rise of ‘digital bodies’. In 2019, Sandvik has contributed to developing the concept of ‘digital bodies’ further, including related to children’s rights, and ‘humanitarian wearables’ at a lecture at Oxford University.

However, the relationship between the humanitarian sector and technology does not have to be one sided. In a blog post, Sean McDonald argues that the humanitarian sector has much to offer the technology industry in terms of data governance, with the caveat of the latter being willing to learn from the former’s century of experience in building organizational structures. As technological developments continue to make its way into humanitarian operations, our main encouragement to academics and practitioners alike is to make thorough ethical considerations to help avoid misuse and potential negative implications.

Top 3 highly attended events co-organized by NCHS in 2019 (click on link to access seminar recording)

1. “Assisting and protecting refugees in Europe and the Middle East – politics, law, and humanitarian practices”. 19 September 2019, at PRIO, Oslo.
2. Humanitarian lunch seminar: SYRIA”. 7 October 2019, at the Norwegian Red Cross, Oslo.
3. “Redningsoperasjoner i Middelhavet: en pull-faktor?”. 25 November 2019, at Litteraturhuset, Oslo.

Looking towards the new year.

Although 2019 has without doubt been a successful first year for the NCHS Research Network on Humanitarian Efforts, we see no reason to rest on our laurels. In late 2019, The Research Council of Norway awarded several projects related to humanitarianism with funding starting from 2020, four of which are led by colleagues associated with NCHS. This year, we vow to continue engaging with academics, practitioners, policy makers and the broader public on questions related to humanitarianism. As stated above, we believe migration, the triple nexus and technological developments will continue to shape the humanitarian agenda in 2020, but these are by no means the only topics on which we will focus our efforts. As the year progress, we hope to engage with actors involved in the field of humanitarian studies on all topics of interest that may arise, and bridge practical and analytical knowledge by connecting research conducted on specific crises with practitioners’ own experience. Stay tuned and follow our web page and social media channels on Facebook and Twitter for more news.

Wishing you all the best for 2020.

Andrea Silkoset

Coordinator Norwegian Centre for Humanitarian Studies

The Cartagena Declaration at 35 and Refugee Protection in Latin America

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This text first appeared on E-International Relations and is re-posted here. More E-IR articles can be accessed by clicking this link. Prof Liliana Lyra Jubilut is a Professor of the Post-graduate Program in Law at Universidade Católica de Santos, Dr Marcia Vera Espinoza is a Lecturer i Human Geography at Queen Mary University of London, and Dr Gabriela Mezzanotti is an Associate Professor in International Human Rights Law at the University of South-Eastern Norway. The authors are currently working on the edited book ‘Latin America and Refugee Protection: regimes, logics, and challenge’.

Photo: Peg Hunter via Flickr

On November 22nd 2019 the Cartagena Declaration on Refugees (Cartagena Declaration) turns 35. It is a paramount document on refugees’ protection in Latin America, setting both normative standards and the regional tone for policies and actions in this area, thus, being a cornerstone of Refugee Law in the region. This is especially relevant as the Latin America is facing contrasting scenarios in terms of migration governance: an increasing politicization of migration and refugees’ management and anti-immigrant sentiments, as well as disrespect for human rights and refugee law, coexisting with a regional tradition of granting asylum and the ascertaining of a human-rights based (Grandi, 2017) and avant-gard protection for refugees (Freier and Acosta 2015; Jubilut and Lopes 2018).

Assessing the role of the Cartagena Declaration and its relevance on its 35th anniversary is also important in light of current regional forced displacements, as Latin America is witnessing massive flows of refugees and other migrants, as (i) in the case of Venezuela with 4,5 million displaced persons (mainly since 2016) and a prediction of reaching 6,5 million next year, also (ii) soaring numbers of refugees and asylum-seekers from the North of Central America (estimated at over 350,000 in the end of 2018), (iii) new displacements from Nicaragua due to a crisis that began in April 2018, (iv) the endurance of Haitian migration, and (v) the continued displacement of Colombians even after the peace agreements, to add to an estimated of 7 million displaced persons during the conflict. This increasing mobility in the region might be joined by new displacements resulting from the social and political strives in Chile and Bolivia.

In this context, it is relevant to present the Cartagena Declaration to a larger audience, celebrate its 35th anniversary, and assess whether the framework of protection created by it since 1984 can be a relevant tool in dealing with these competing scenarios in refugee protection in Latin America, as a way to appraise its lasting and current impacts.

The Cartagena Declaration and Its Regime

Panorama

The Cartagena Declaration was created in an academic colloquium (Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama) held in Colombia in 1984, in light of the refugee situation in Central America[1], and adopted a regional approach to refugee protection.

The Cartagena Declaration set the basis for the evolution of a specific Latin-American framework of refugees’ protection, developing from the region’s long-established tradition of asylum (Fischel De Andrade, 2014, Acnur n/d). It dialogues, however, with larger frameworks (Jubilut and Lopes, 2018), such as the international refugee regime (a relation expressed both in the Document’s explicit mentions to the 1951 Refugee Convention and its 1967 Protocol[2] and in its support by the United Nations High Commissioner from the beginning[3], Human Rights and other regional schemes such as the Organization of American States (OAS) – which embraced the Declaration[4] and encompasses the United States, Mexico, and the Caribbean States alongside Latin America countries. Due to its normative developments, has been listed together with the 1969 OUA Convention Governing the Specific Aspects of Refugee Problems in Africa as examples of successful developments in regional refugee protection.

The Cartagena Declaration, initially adopted by 10 States as a soft law instrument, is divided into 3 content parts: the first one with a preamble aspect contextualizing the document and expressing its fundaments and principles; the second one linking the document to the Contadora Process for Peace and reproducing its normative result[5], and the third part with the substantive contributions of the Document, presented as conclusions.

There are 17 conclusions in the Cartagena Declaration encompassing suggestions specifically tailored to the Central America refugee situation, provisions on the betterment of refugee protection in the States of the region, and contributions to refugee protection at large in Latin America. In the latter, two aspects should be highlighted.

The first is the already mentioned dialogue between refugee protection and human rights. This is a prevalent topic in the Cartagena Declaration, and should be praised both as a pioneering effort in States’ practice in this area (in the early 1980s) and as a guideline aiming at guaranteeing integral protection for refugees, i.e. not only the rights they are entitled to due to their migratory status but also all their human rights (Jubilut, Apolinário, 2008). Furthermore, this connection opens up the possibility of refugee protection also benefiting from other institutional arrangements linked to human rights (such as the InterAmerican System of Human Rights from the OAS), and, therefore, being enlarged.

The second aspect regarding refugee protection at large in Latin America is the creation of a regional definition of refugees that goes beyond the international criteria set up by the 1951 Refugee Convention and its 1967 Protocol. This stems from the 3rd Conclusion of the Cartagena Declaration, that reads:

the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. (highlights added)

These criteria look into the objective situation of the country of origin of the refugee as the main cause for refugee status, not requiring the existence of individual persecution (Jubilut and Carneiro, 2011; 67, Reed-Hurtado, 2013) and closely links refugee status to International Human Rights and International Humanitarian Law (Ibid; Burson and Cantor 2016).

Among the several criteria spelled out in the 3rd Conclusion, the one mentioning massive violation of human rights (or gross and generalized violation of human rights as more commonly used in the region[6]) is not only the more encompassing one[7], but also is perceived as the main conceptual contribution of the Cartagena Declaration. This is so due to the fact that albeit not applied in its entire possible width  it allows for recognizing refugee status “when internationally recognized rights are subject to widespread or large scale violations—situations of ‘gross and systematic denial of civil, political, economic and social, and cultural rights” (Reed-Hurtado, 2013: 14), encompassing, for instance, situations such as dictatorships, internal strives, humanitarian crisis, and war. In this sense, and from a normative standpoint, it is a relevant increase in protection in the region.

Legacy and Impacts

The creation of a regional concept of refugee, and the inclusion of  the possibility of refugee status due to gross and generalized violation of human rights in it, are the first two impacts of the Cartagena Declaration that need to be emphasized. They not only amplify protection in the region but also establish a Latin-American grammar in refugee protection, combining the international criteria for refugee status determination with a tailored regional definition. The latter also reinforces the dialogue between Refugee Law and Human Rights, present from the start in the regional regime as it is incorporated in the region’s refugee definition from 1984. The Cartagena Declaration concept of refugee and its peculiarities can be said to be a first pillar in the creation of a regional refugee regime in Latin America.

If one accepts regimes as the existence of rules, principles, and decision-making procedures (Krasner,1982) this perception is corroborated by the fact that the Cartagena Declaration set up a revision process, with meetings every 10 years to evaluate the region’s needs and developments in refugee protection and to adopt follow-up documents and plans of actions.

The first of these meetings was held in 1994, and resulted in the San Jose Declaration, which has as its main specific contribution the fact that, regionalizing the international momentum of the topic[8] and perceiving the region’s needs in the issue, strongly dealt with the protection of Internally Displaced Persons as a relevant Latin-America theme in refugee protection[9]. The second follow-up meeting took place in 2004 and resulted in the adoption of the Mexico Declaration and Plan of Action,[10] which embraced a responsibility-sharing optic instead of the more traditional burden-sharing approach to refugee protection, and was divided in two main components: one focusing on protection and the other on durable solutions (Jubilut and Carneiro 2011). In the latter, three regional initiatives were adopted within the solidarity[11] logic that guides all the document: 1) borders of solidarity, focusing on protection at frontiers as well as on actions for local host populations on border towns; 2) cities of solidarities, with a focus on integration in urban settings, the main scenario in Latin America; and 3) resettlement in solidarity, creating new resettlement schemes in the region, for both intra and extra regional refugees and having as its main selection criterion the need for protection (Vera Espinoza 2018a, 2018b; Jubilut and Zamur 2018).  The most recent of the meetings happened in 2014 and led to the adoption of the Brazil Declaration and Plan of Action, which reinforces the initiatives previously adopted and the existence of a regional regime of refugee protection in Latin America (Jubilut and Madureira 2014), and continues the Cartagena Declaration legacy.

If the regional refuge definition is the first pillar of the Cartagena Declaration regime of refugee protection, the revisional process and its products are the second. They are also good thermometers of regional adherence to the regime, pointing out a continuous increase in commitments, as one can see that while the Cartagena Declaration was initially adopted by 10 countries and is currently incorporated nationally by 16, the San Jose Declaration was signed by 17 States, the Mexico Declaration and Plan of Action by 20, and the Brazil Declaration and Plan of Action by 31 countries. Furthermore, they showcase an evolution from only declarations to declarations and plans of actions which represents concerns about both normative propositions and actual implementation and policies.

The third pillar of the regional refugee regime can be said to be the aforementioned connection with human rights, which has led the region to be praised internationally (Grandi, 2017). This is relevant as it also sheds light into a fourth pillar and key aspect of refugee protection in Latin America, as it is the coexistence of different systems and regimes (Jubilut and Lopes, 2018: 132). In relation to the former, one can point out (i) the dual nature of asylum in the region, implemented by political asylum and refugee status, (ii) the dialogues among Refugee Law and International Human Rights and International Humanitarian Law, and (iii) the coexistence of the regional definition with the international refugee definition (Ibid).

Regarding the coexistence of regimes of refugee protection in Latin America[12], it is relevant to first recall the previously mentioned relationship between the regime created by the Cartagena Declaration with the InterAmerican Human Rights System, which, through the InterAmerican Court of Human Rights and the InterAmerican Commission on Human Rights, can be said to also have created a regional protection regime for refugees and other migrants within its human rights framework.

A second regime coexistence would take place in relation to the Cartagena Declaration regime and national regimes of refugee protection. Given that, as mentioned, 16 countries have already incorporated the Cartagena Declaration into their national laws, it could be argued that this regime co-existence has not only expanded protection but also transformed, at least in the national level, a commitment transforming a soft law instrument into hard law at least nationally.

If, on the one hand, one can thus see the Cartagena Declaration Regime as having four main pillars – regional definition, revision processes, connection to human rights and the dialogue with other regimes and systems -, on the other, it is also possible to identify three elements that complement this regime, in what is called the “spirit of Cartagena”, understood in relation to: 1) a human rights approach to refugee protection, which is simultaneously a pillar of the Cartagena Declaration regime and a characteristic of the “spirit of Cartagena”, 2) an expanded humanitarian space and 3) a constant effort to assess the region’s needs and challenges in refugee protection.

The “spirit of Cartagena” can be said to be in place in the debates and adoption of the Cartagena Declaration but also in the development of the regime derived from it, and even influencing other actions regarding the protection of refugees and other migrants (such as humanitarian visas and other alternative pathways for legal stays for instance (Jubilut 2017)) in Latin America. That is to say, the ‘spirit of Cartagena’ and the Cartagena Declaration regime’s pillars can be considered to be lasting impacts and legacies of the Cartagena Declaration in the protection of refugees in Latin America.

Current Challenges in Refugee Protection in Latin America

However, and even though the regional setting showcases the existence of comprehensive regimes of refugee protection, and a regional optic of ascertaining human rights and the implementation of asylum; recent events have – as noted above – created a scenario of contrasting and competing logics, i.e. one the one hand, the Cartagena Declaration and its regime, alongside other structures of protection in the region, and, on the other, the adoption of policies, rhetorics and actions against refugees and other migrants’ protection.

This can start to be explained by the fact that Latin America remains a region that, at the same time, produces and receives refugees (UNHCR, 2019: 68 and 74), and recently has been experiencing a combination of these realities: with a record number of intra-regional refuges, originating mainly from Venezuela and the North of Central America, but also encompassing forced migration from other places (Jubilut and Jarochinski 2018; Jubilut 2016).

The increase in numbers has occurred alongside the rise of populist governments, as well as right-wing local and/or national governments, which either did not impress great significance on refugee protection or adopted a “hard line” in migration governance. The combination of these factors has led to human rights violations, restrictive migratory laws, and violations of Refugee Law (both in its international and regional standards).

Examples of that have been the preferred avenue by States to not apply the regional definition to intra-regional refugees but rather create complementary protection pathways (Jubilut and Fernandes 2018), which could be seen as an implementation of the “spirit of Cartagena” if they were being applied only to migrants other than refugees, and not as a way to diminish protection. Moreover, and in a opposite policy, some countries have not created any strategy to deal with the increased flows, leaving all migrants to apply for refugee status, thus overburdening existing systems and regimes. Furthermore, specific situations have amplified the vulnerability of some migrants, such as in the cases of statelessness persons’ protection (from Haiti in the Dominican Republic), undocumented children migration (from the North of Central America and Venezuela) and migration of indigenous persons (from Venezuela).

One can see then that competing and contrasting logics are in play in Latin America, at the time of the 35th anniversary of the Cartagena Declaration. It is relevant to point out this scenario so that setbacks are not allowed, and the regime created by the document is not jeopardized. Moreover, recalling the Cartagena Declaration and the regime it has created, as well as how it is a framework of protection that dialogues with others in the region, helps to highlight that there is a grammar of protection in Latin America, with strong normative structures, and if refugees and other migrants are not being adequately protected it is more a result of lack of political will and of political choices than a lack of regimes and traditions of humanitarian action, granting of asylum and refugee protection.

Conclusion

As argued here, the 1984 Cartagena Declaration and its legacy for the protection of refugees in Latin America, which spams from the document itself to the creation of a regional regime as well as impregnates the region with the “spirit of Cartagena”, is more relevant than ever. The lasting impacts of the Document as well as the longevity of a regional commitment to refugee protection should be celebrated, especially in the occasion of its 35th anniversary. However, practical challenges remain, particularly in light of new forced displacement flows in the region that bring to light contrasting scenarios for refugee protection in Latin America.

On the one hand, the most positive characteristics of the region that create Latin America’s grammar of refugee protection, are: the long-lasting tradition of asylum; a human rights approach (that can lead to integral protection); the spirit of Cartagena; and the coexistence of the Cartagena Declaration Regime, the InterAmerican Human Rights system for the protection of refugees and other (forced) migrants, and national regimes that have adopted expanded refugee status definition as well as humanitarian policies and complementary protection alternatives. On the other, however, anti-migrants rhetorics from around the world also reverberate in Latin America, alongside discriminatory and xenophobic behavior, as well as, the adoption of practices and rules that go against international commitments, so as to escape the reach of International Refugee Law (as with non-refoulement and adequate Refugee Status Determination procedures) or International Human Rights standards (in the protection of children and against torture and detention, for instance).

It seems, thus, that even though the instruments (normative and otherwise) are in place, the main challenges arise from the lack of political will to implement them. That is why highlighting the relevance of the Cartagena Declaration by celebrating its 35th anniversary, can be an important reminder to the region of its commitments to refugee protection, asylum and human rights.

Notes

[1] See Cartagena Declaration 2ndh preambular paragraph.

[2] See, for instance, Cartagena Declaration 4th and 8th preambular paragraphs, as well as its second, third and eighth conclusions.

[3] UNHCR was represented in the Colloquium that adopted the Declaration and is mentioned throughout the document.

[4] By Resolution AG/RES. 774 (XV-O/8S) of 1985, which highlights the importance of the Declaration and recommends that all Member States apply it to refugees in their territory (paragraph 3) . Available at: <http://scm.oas.org/pdfs/agres/ag03799S01.PDF>.

[5] See Cartagena Declaration 8th preambular paragraph.

[6] For the different wordings adopted by States in incorporating this aspect of the Cartagena Declaration, see: Piovesan and Jubilut (2011)

[7] For even broader possibilities of application of this criterion see Weerasinghe (2018).

[8] For instance, with the 1998 Guiding Principles on Internal Displacement.

[9] The topic was also present in the Cartagena Declaration (conclusion 9).

[10] All of the documents from the Cartagena Declaration regime, as well as the practices of the InterAmerican Human Rights system, national practices in the region, regional schemes for the protection of migrants that can also benefit refugees, as well as the main current displacement flows from the region, are the objects of study of upcoming volume edited by Jubilut, Vera Espinoza and Mezzanotti (forthcoming).

[11] For more on solidarity as a guiding principle of the Cartagena Declaration regime and a legacy from it (as well as the flexibility of sovereignty impose by the Document) see: Jubilut, Apolinário and Jarochinski (2014).

[12] For more on this see the upcoming volume edited by Jubilut, Vera Espinoza and Mezzanotti (forthcoming).

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