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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).

References

Alto Comissariado das Nações Unidas para Refugiados (ACNUR). Protección de Refugiados en América Latina: Buenas Prácticas Legislativas, n/d.

Burson, Bruce; Cantor, David J. (Eds.). Human Rights and the Refugee Definition – Comparative Legal Practice and Theory, 2016.

Cantor, David. J.; Barichello, Stefania E. The inter-American human rights system: A new model for integrating refugee and complementary protection. The International Journal of Human Rights, n. 17, 2013: 689 – 706.

Freier, Luisa Feline; Acosta, Diego. South America’s moves to liberalize irregular migration are in stark contrast to the punitive and fatal policies of the U.S. and EuropeThe LSE US Centre´s daily blog on America Politics and Policies, 2015. https://blogs.lse.ac.uk/usappblog/2015/06/17/south-americas-moves-to-liberalize-irregular-migration-are-in-stark-contrast-to-the-punitive-and-fatal-policies-of-the-u-s-and-europe/

Fischel de Andrade, José Henrique. Forced Migration in South America. In: Fiddian-Qasmiyeh, E. et al. (Eds.). The Oxford Handbook of Refugee and Forced Migration Studies, 2014: 651-663.

Grandi, Filippo. Foreword: Regional solidarity and commitment to protection in Latin America and the Caribbean. Forced Migration Review, 56, 2017: 4-5.

Jarochinski Silva, João Carlos; Jubilut, Liliana L. Venezuelans in Brazil: Challenges of Protection. E-International Relations, 2018. e-ir.info/2018/07/12/venezuelans-in-brazil-challenges-of-protection/

Jubilut, Liliana L. Humanitarian Alternative Pathways for Protection for Forced Migrants in Latin America, In: McAuliffe, M. and M. Klein Solomon (Conveners). Migration Research Leaders’ Syndicate: Ideas to Inform International Cooperation on Safe, Orderly and Regular Migration, 2017: 117-122. https://publications.iom.int/books/humanitarian-alternative-pathways-protection-forced-migrants-latin-america.

Jubilut, Liliana L. Latin America and Refugees: a panoramic view. Völkerrechtsblog, 2016. https://voelkerrechtsblog.org/latin-america-and-refugees-a-panoramic-view/

Jubilut, Liliana L.; Apolinário, Silvia M. O. S.  A população refugiada no Brasil: em busca da proteção integral. Universitas- Relações Internacionais, 6 (2), 2008: 9-38.

Jubilut, Liliana L; Apolinário, Silvia M. O. S; Jarochinski Silva, João Carlos. In: The transformative potential of refuge: the deepening of solidarity and of limits to sovereignty as a legacy of the Cartagena Declaration and its review process In: Jubilut, Liliana Lyra. Refugee Protection in Brazil and Latin America – Selected Essays, 2018: 159-178).

Jubilut, Liliana L; Carneiro, Wellington P. Resettlement in Solidarity: a regional new approach towards a more humane durable solution. Refugee Survey Quarterly, 3, 2011: 63-86.

Jubilut, Liliana L.; Fernandes, Ananda P. A atual proteção aos deslocados forçados da Venezuela pelos países da América Latina. In: Baeninger, Rosana; Jarochinski Silva, João Carlos (Ed.). Migrações Venezuelanas, 2018: 164-177. https://www.nepo.unicamp.br/publicacoes/livros/mig_venezuelanas/migracoes_venezuelanas.pdf.

Jubilut, Liliana L.; Lopes, Rachel de O. Forced Migration and Latin America: peculiarities of a peculiar region in refugee protection. Archiv des Völkerrechts, v. 56 (2), 2018: 131 – 154. https://doi.org/10.1628/avr-2018-0008

Jubilut, Liliana L.; Vera Espinoza, Marcia; Mezzanotti, Gabriela (Eds). Latin America and Refugee Protection: regimes, logics and challenge, forthcoming.

Jubilut, Liliana L.; Zamur, Andrea C. G. Brazil’s Refugee Resettlement: Power, Humanitarianism and Regional Leadership. In: Garnier, Adèle; Jubilut, Liliana L.; Sandvik, Kristin B. (Eds.). Refugee Resettlement: Power, Politics and Humanitarian Governance, 2018: 70-91.

Piovesan, Flávia; Jubilut, Liliana L.  The 1951 Convention and the Americas: Regional Developments. In: Zimmermann, Andreas (Org.). Commentary on the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, 2011: 205-224.

Reed- Hurtado, M. The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America. UNHCR Legal and Protection Policy Research Series, 2013. https://www.unhcr.org/protection/globalconsult/51c800fe9/32-cartagena-declaration-refugees-protection-people-fleeing-armed-conflict.html

UNHCR. Global Trends – Forced Displacement in 2018.  Geneva: UNHCR, 2019. https://www.unhcr.org/statistics/unhcrstats/5d08d7ee7/unhcr-global-trends-2018.html

Vera Espinoza, M. The Limits and Opportunities of Regional Solidarity: Exploring Refugee Resettlement in Brazil and Chile. Global Policy, 9 (1), 2018a: 85-94. DOI:10.1111/1758-5899.12534

Vera Espinoza, M. The Politics of Resettlement: Expectations and Unfulfilled Promises in Brazil and Chile. In: Garnier, Adèle; Jubilut, Liliana L.; Sandvik, Kristin B. (Eds.). Refugee Resettlement: Power, Politics and Humanitarian Governance, 2018b: 223-243.

Weerasinghe, Sanjula. In Harm’s Way International protection in the context of nexus dynamics between conflict or violence and disaster or climate change, UNHCR Legal and Protection Policy Research Series, 2018. https://www.unhcr.org/5c1ba88d4.pdf

Understanding the ‘internal protection alternative’ (Part II)

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by Jessica Schultz, Researcher, Chr. Michelsen Institute.

This is the second post in a two-part series on the internal protection alternative (IPA) based on Jessica Schultz ’s new book on the topic. The two blog posts were first posted on “The EU Immigration and Asylum Law and Policy” blog, and are re-posted here. The first post took Norway as a case study and this post follows up with a reflection on refugee law’s ‘surrogate’ role which states use to justify IPA practice.

The surrogate role of refugee law: a principle or preoccupation?

As described in the previous post, the ‘internal protection alternative’ (IPA) is a limit on refugee status used to exclude claimants with access to adequate protection somewhere within their countries of origin. For example, an Afghan who fled Taliban recruitment in Helmand province may be returned to Kabul if conditions are sufficiently safe there. In most jurisdictions, return must also be reasonable for the person concerned. 

Although there is no mention of the IPA in the 1951 Refugee Convention or its 1967 Protocol, this implied limit spread in state practice during the mid-1980s as a response to several factors, including the prominence of non-state persecution as a basis for refugee claims. Today, the concept has firmly taken root in many jurisdictions despite continued debate about the exact criteria for IPA application. 

The IPA is also sometimes applied to justify decisions relating to the cessation of refugee status when some area of the country of origin is deemed secure enough to accommodate returning refugees. The migration of the IPA concept from the inclusion to the cessation analysis is not broadly endorsed (see UNHCR’s position and UK jurisprudence), but there is little doubt that states are increasingly interested in identifying some safe space – anywhere – to which refugees or refugee claimants may return within their countries of origin. 

My book analyzes various ways that states and scholars have framed the IPA limit in refugee law. This post examines a common element of these efforts, the observation that international protection is ‘surrogate’, or subsidiary, to national protection provided by countries to their own citizens. As Zimmermann and Mahler explain, ‘the evolution of the [IPA] concept draws heavily on the notion of surrogacy as a basic principle of refugee law, according to which international protection only comes into play when national protection within the country of origin is not available.’ If national protection exists somewhere, the back-up remedy of protection abroad is not (or no longer) needed. 

The surrogate role of refugee law: ‘thin’ versus ‘thick’ perspectives

As Goodwin-Gill and McAdam have written, the notion of ‘surrogacy’ usefully describes the overall role of refugee law. The 1951 Convention obliges state parties to provide replacement protection, when a person can demonstrate a well-founded fear of persecution within their country of ‘origin’ (citizenship or previous residence in the case of stateless persons) (Article 1A(2)). Beyond the inclusion provision, Article 1 also contains criteria for exclusion and cessation of refugee status. These too confirm the subsidiary, or surrogate, character of Convention protection. For example, Articles 1A(2) para 2, 1C(5), 1C(6), and 1E all indicate that when there is no well-founded fear of persecution within the country of origin or another country where the claimant has a national connection, refugee status need not be recognized. However, neither the text nor other sources (including the extensive drafting history, as discussed in the book) suggest a similar limit for persons for whom protection is available in only part of a country. 

It may be helpful, then, to distinguish between a ‘thin’ surrogacy perspective and the ‘thick’ one that is sometimes referred to as a ‘principle’ of refugee law.  According to a ‘thin’ surrogacy perspective, the lack of protection by the state of origin is relevant insofar as it negates the well-founded nature of a claimant’s fear. This absence of protection is a characteristic of a person who meets the Convention criteria; it is not a condition of refugee status. A fear of persecution is well-founded because the state has failed to ensure a minimum level of security to suppress a risk of serious harm. The IPA is not compelled by this interpretation of refugee law, although there may be cases in which the claimant’s unwillingness to avail him or herself of home state protection, despitea well-founded fear, cannot be reasonably justified. 

According to a ‘thick’ surrogacy perspective, meanwhile, state protection comes into play at two separate stages in the assessment of refugee status. First, serious harms committed by non-state actors qualify as persecution for a Convention reason when the state is unable or unwilling to protect the claimant. Second, the possibility of protection elsewhere in the country of origin must be considered to establish the necessity of protection abroad. In other words, protection has a systemic aspect (related to the state’s ability and willingness to protect from the original harm) as well as a territorial one (related to the possibility of protection elsewhere). 

There is nothing in the structure of the Convention to suggest that the presence of protection somewhere in a state’s territory can defeat a claim to refugee status. Article 1A(2) of the Refugee Convention defines a refugee as someone who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country….’

The criteria for refugee status are satisfied, in other words, when the claimant 1) is outside his or her country of origin; 2) has a legitimate fear of persecution for a Convention ground; and 3) is unable or unwilling, owing to the well-founded fear, to avail him or herself of that country’s protection. The ‘thick surrogacy’ perspective shifts focus from the claimant’s ability or willingness to avail herself of home state protection to the ability or willingness of the state to provide it (within the country of origin).  

Despite the fact that a ‘thin’ surrogacy perspective aligns better with the text of the treaty, a ‘thick’ surrogacy perspective has gained traction in the scholarly discourse as well as in national jurisprudence. Below are some of the factors – by no means exhaustive – that help explain this development.

Factor 1: The influence of human rights law and principles on interpretation of the refugee concept

One explanation for the persistent power of ‘surrogacy’ as a justification for limiting the scope of refugee status relates to the misuse—in my view—of human rights law and principles for the purpose of interpreting the Refugee Convention. In terms of protection criteria, non-refoulement cases decided by human rights courts have influenced states’ interpretation of the 1951 Convention’s refugee concept. These do not frame the IPA as a limit on the scope of refugee status but rather as an extension of the basic risk analysis covering conditions on return. 

Procedural concepts from the human rights field have also infiltrated substantive interpretations of refugee law. Some sources refer to the duty to ‘exhaust domestic remedies’ in support of IPA practice. The ‘exhaustion of local remedies’ rule applies in human rights law to preserve the subsidiary nature of supranational decision-making bodies vis-à-vis a more democratic local organ. Despite its authoritative ring, it makes no sense in the context of refugee claims. First, the rule is usually concerned with systemic procedures (has the case been heard by the state’s highest court?) and not with the absence of protection by local state agents in certain areas. It also involves a backward-looking analysis (what has been done?) in contrast to the prospective inquiry required to assess the need for protection.  

Factor 2: The influence of other disciplines in the interpretation of the refugee concept

A second explanation for the prominence of the surrogacy discourse relates to broader developments in the field of refugee studies. In recent decades, important contributions to the refugee concept from social scientists and philosophers have filtered into legal debates. With some exceptions, these scholars (see here and here) argue that international protection should extend beyond the confines of the Geneva Convention to include persons forced to flee their countries of origin for reasons that may or may not have a Convention nexus.  

For example, in his influential article ‘Who is a Refugee?’ (1985), Shacknove posits the following definition: 

[R]efugees are, in essence, persons whose basic needs are unprotected by their country of origin, who have no remaining recourse other than to seek international restitution of their needs, and who are so situated that international assistance is possible. 

Despite the fact that Shacknove’s contribution to the field of forced migration was never meant as a restatement of refugee law, legal scholars like Hathawayand Storey have cited him in support of their view that the possibility of protection somewhere in the country of origin may, under certain conditions, defeat a claim for refugee status. Scholarly contributions, even those motivated by the desire to expand the refugee concept,  have reinforced the view that a deserving claimant is one whose compelling needs arise from the absence of adomestic alternative

Factor 3: The self-referential nature of norm development in refugee law

Without a treaty monitoring body to oversee the Convention, the situation arises in which certain ideas take on a life of their own through the interplay of jurisprudence, scholarship and policy. The concept of surrogacy has undoubtedly gained momentum through the inter-jurisdictional ‘dialogue’ in the field of refugee law and the influence of leading scholars. Its expression, however, has also been marred by circular reasoning. For example, the Canadian Supreme Court in Ward refers to the first edition (1991) of The Law of Refugee Status of Hathaway to explain the surrogate role of refugee law. Although the legal question was about whether non-state persecution was covered by the Convention’s refugee concept (and not about a potential IPA), this case appears regularly in IPA literature. Indeed, authors of the second edition of The Law of Refugee Status cite Ward as evidence of positions proposed in the previous book. 

Factor 4: Harmonization impulses versus the Refugee Convention as ‘lex specialis’

As most states operate with multiple regimes of international protection, the ‘surrogacy principle’ can be leveraged to justify the IPA as an unwritten exception to refugee status no matter what its treaty basis may be. For example, Article 8 of the EU Qualification Directive (2011) provides in general terms that internal protection may be considered ‘(a)s part of the assessment of the application for international protection’. By framing the IPA in this way, it is easier for states to justify a common IPA test in claims to Convention refugee status as well as those that relate to complementary forms of protection. As discussed elsewhere, the consequence has been that human rights courts like the ECHR are increasingly setting the standards for interpretation of the Refugee Convention – also for IPA practice – rather than the other way around.

Implications of a ‘thin’ surrogacy perspective for IPA practice

While the Refugee Convention’s purpose is to provide substitute protection, recognition as a refugee does not depend on the absence of a domestic alternative.  Nonetheless, an IPA limit may apply under certain conditions: when a claimant can relocate within the country of origin with minimal negative impact (from either an objective human rights perspective or a more subjective, humanitarian one). In these cases, extending international protection would erode the treaty’s effectiveness. In addition to individual factors, sending states must consider structural ones: whether return would reinforce policies or practices of ethnic cleansing, or stress already fragile areas. Both dimensions require a displacement-sensitive analysis. 

The scope for IPA practice when revoking refugee status is even narrower. As UNHCR has rightly maintained, where a risk of persecution persists in one region of a country, it is unlikely that the changed circumstances are ‘profound’ and ‘enduring’ as required under the cessation analysis. There are also situations in which circumstances have objectively changed but return is still unreasonable due to past experience of persecution.  

The IPA question goes to the heart of what it means to be a refugee. Is a well-founded fear of persecution within the country of origin enough to establish a refugee claim? While persecution – especially by non-state actors – may not always justify the claimant’s recourse to refuge abroad, the presumption that it could should not be diluted. The surrogacy concept in many jurisdictions has done just that, by shifting the focus of refugee status determination from the risk of persecution to the possibility of return in line with minimal human rights standards. This not only downplays the relevance of refugee experience, but it also renders the unique protection issues attached to internal displacement – a consequence of IPA practice –  largely invisible.

Understanding the ‘internal protection alternative’ (Part I)

This is the first post in a two-part series on the internal protection alternative (IPA) based on Jessica Schultz ’s new book on the topic. The two blog posts were first posted on “The EU Immigration and Asylum Law and Policy” blog, and are re-posted here. It starts with a case study on Norway and follows up with a post reflecting on refugee law’s ‘surrogate’ role which states use to justify IPA practice.

By: Jessica Schultz, Researcher and Senior Adviser, CMI

A post mortem on the demise of the reasonableness requirement: The IPA in Norway

It might surprise some readers that Norway, normally viewed as a human rights stalwart, is at the forefront of efforts to push the boundaries of refugee law in a restrictive direction. Like other European States, Norway responded to the influx of refugee claims in 2015 with a barrage of policies intended to deter and divert refugee flows. Border controls, safe third country transfers, time limits on residence, and restricted family reunification were among the measures adopted to ensure that Norway’s policies at a minimum were not more generous than those of its neighbors.  

In one area, however, Norway’s restrictions surpassed those of other states: it lowered the threshold for applying the ‘internal protection alternative’ (IPA) as a basis for denying refugee claims. IPA practice is premised on the view that refugee law comes into play when the claimant’s country of origin cannot or will not provide protection itself. If a domestic alternative to asylum abroad is accessible, safe, and reasonable, UNHCR and many states accept that a refugee claim may be refused.

Following amendments to the Immigration Act passed in 2016, this last condition, that relocation is ‘reasonable’, no longer applies. In the government’s view, the principle of non-refoulement only requires that protection against persecution is available in a return area. If it is, refugee status need not be recognized – no matter how harsh the consequences may be. Only one other jurisdiction – Australia – excludes reasonableness from the IPA assessment.

For reasons described here, ‘reasonableness’ (or proportionality) is widely-recognized as a legal requirement for application of the IPA limit. So what explains Norway’s outlier position? This post reviews the historical and political roots of Norway’s current IPA practice, including the claim that the right to refugee status is subject to a degree of state discretion. I will also discuss, as an example, the consequence of Norway’s position for unaccompanied Afghan minors and implications for other areas of refugee law.

Roots of the reasonableness test in Norway

As with other states in Northern Europe, IPA practice in Norway gained momentum in the 1990s, and evolved largely in response to claims of persecution by non-state actors. Consideration of the IPA in these early years was exceptional and informal in nature, and justified with reference to paragraph 91 of UNHCR’s 1979 Handbook. Although the 1988 Immigration Act made no mention of an IPA limit, the Ministry of Justice’s Asylum Guidelines in 1998 formally addressed, for the first time, the concept’s relation to refugee status:

In cases where the applicant will be threatened by non-state groups or individuals in certain areas of the home country, protection in Norway (either in the form of asylum or a residence permit) is normally refused if he or she will be secured protection in other (for example government-controlled) areas of the home country.

The Guidelines offered an exception when, ‘after a holistic assessment of all aspects (health issues, impact on children, links to Norway), there may be cases in which the claimant should not be compelled to relocate elsewhere in the home country despite the possibility of securing protection there.’ Notably, the ‘aspects’ mentioned depart from the ‘reasonableness’ criteria set out by UNHCR. Instead, they refer back to a separate provision of the Immigration Act concerning residence on humanitarian grounds.

From the beginning, then, the reasonableness test was deemed a matter of state discretion, to be linked to whatever criteria domestic authorities deemed to be most compelling.  The consequence was an overly narrow reasonableness assessment (excluding issues like the right to education, freedom of religion and past persecution) and a lower standard of judicial review.

Drafters of the 2008 Immigration Act aimed to realign the reasonableness test with UNHCR’s Guidelines. The Immigration Regulations that followed, however, reasserted the link between the reasonableness assessment and criteria for residence on strong humanitarian grounds. Jurisprudence remained split on the proper reference point until the issue was finally brought to the Norwegian Supreme Court in 2015.

The Supreme Court’s Internal Flight judgment

The Internal Flight case involved an Afghan family refused asylum on the basis of an IPA in Kabul. The parents were originally from Ghazni province, but had spent many years in Iran where their two daughters were born. The Board of Immigration Appeals (UNE) had concluded that their claim for asylum under the Refugee Convention was not credible, but that the family was nonetheless protected on grounds of the security situation from return to their area of origin.  

The question was then: could the family safely and reasonably relocate to another part of Afghanistan? The claimants argued that the IPA test should be interpreted in line with UNCHR´s guidance, in accordance with the intention of lawmakers. By linking the reasonableness criteria with discretionary factors instead, the Immigration Regulations overstepped their statutory basis. The Court, however, declined to rule directly on this issue. Instead, it simply confirmed that the Immigration Regulations, and the specific interpretation they codify, have a legal basis in the Immigration Act.

The Court’s refusal to address the actual criteria reflects a belief that reasonableness is not integral to the IPA concept. Why? One clue is found in Judge Utgård’s opinion, where he harkened back to the Supreme Court’s Abdi judgment from 1991. In that case, involving a sur place claim arising from the person’s voluntary activities in Norway, the Court distinguished between core areas covered by the Convention and periphery issues belonging to a state’s discretion. The subjective sur place problem occupied this peripheral zone: although Abdi was protected from refoulement, he could still be refused refugee status.

Referring to the Abdi judgment, Utgård wrote that the state has ‘broad liberty’ to regulate who has the right to refugee status in Norway. In Utgård’s view, the parameters of non-refoulement regulated by Article 33 (1) of the Geneva Convention only require that the ‘return area is accessible and safe.’ Considerations of reasonableness, on the other hand, occupy a peripheral space that can be regulated as the State sees fit. Even though Utgård’s position was obiter dictum, it was picked up by the Ministry of Justice and Security in its proposal not long afterwards to remove the reasonable conditions from the IPA test: ‘(t)he assessment here is linked to a core area for the Convention, which is protection against return to an area where the foreigner has a well-founded fear of persecution’ (emphasis added).

The ‘refugee crisis’ and removal of the reasonableness requirement in IPA practice

This proposal came as part of a package of measures announced in December 2015. According to the Ministry, the reasonableness test was essentially problematic: it had unclear scope and content; it opened for discretionary assessments that were difficult to structure; and it lead to unequal treatment of similar cases. Furthermore, the Ministry curiously claimed, ‘it is undisputed that international law does not require states to operate with the reasonableness criteria.’ In support of this statement it referred to Utgård’s minority opinion and incorrectly cited Professor Zimmermann´s well-known Commentary on the Refugee Convention. The Ministry also wrote that the ‘reasonableness’ requirement in the IPA provision of the EU Qualification Directive (Article 8) referred only to the extreme humanitarian conditions which have anyway been read into Article 3 ECHR by the ECtHR. In reality, Article 3 jurisprudence doesn’t even capture the requirements of ‘effective protection’ much less reasonableness for IPA purposes.  

Parliament approved the proposed amendment, which came into effect on October 1, 2016. The current IPA provision states that:

“[t]he right to be recognized as a refugee according to paragraph 1 does not pertain if the foreigner can receive effective protection in other parts of the country of origin than that area from which the claimant has fled”.

Consequences for refugee claimants: the case of Afghan minors

It is hard to measure the impact of the change in IPA practice on rates of recognition in Norway. One reason is that the IPA is often used as a subsidiary reason for refusing refugee status, when other aspects of the claim are unclear. Decisions typically reason that ‘even if’ the claimant is telling the truth, or the risk of persecution indeed exists, he or she could still safely relocate to a city or region within their country of origin. Therefore, statistics on the formal grounds for rejection do not capture the influence of IPA reasoning.

We do know, however, that changes to IPA practice has affected the rates of refugee status for some vulnerable groups. Families with children, single women, persons with serious illnesses and others are no longer recognised as refugees  because return to internal displacement would be unreasonable. Instead, if they are lucky, they receive a more contingent leave to remain for humanitarian reasons. The IPA rules have also affected recognition rates for unaccompanied minors (UAMs), most of whom come from Afghanistan.  Before 2016, UAMs were exempt from IPA practice since the absence of a caregiver would automatically render return ‘unreasonable’. This is no longer the case. Removal of the reasonableness requirement has resulted in the expanded use of temporary residence visas that expire at the age of 18. At that point these youths may be returned to a city (Kabul) increasingly recognized as profoundly unsafe and to a country those born in Iran or Pakistan have never even lived in.

Following a regulation change earlier in 2018 aimed at softening these harsh effects, decision-makers were instructed to review these cases to consider, among other things, whether the minor would have a network and/or resources to get along in Kabul.  These vulnerability criteria covered only a fraction of the factors relevant to a reasonableness analysis. Even so, the Immigration Directorate determined that less than half of the youths who applied met them. Many others, living precariously in Paris and elsewhere, did not meet the deadline for having their claim reconsidered.

Consequences for other dimensions of refugee law: cessation of refugee status

The concept of a refugee set out in the 1951 Refugee Convention is being squeezed not only in terms of its spatial dimension, but also its temporal one. As the Ministry of Justice reminds us, ‘international protection is subsidiary to protection in one’s own country’. In the next post, I will unpack this claim. For the time being, however, it begs the question: if refugee status can be refused on the basis of an IPA, can it also be revoked when an IPA becomes available?  In Norwegian practice, the answer appears to be positive.

In the view of the Ministry of Justice, the need for protection no longer exists when some area of the home country is safe. It has argued that implementing the IPA in these cessation cases ensures ‘equal treatment’ for all refugees from the same country, no matter what part they come from. This position not only conflates return to one’s previous residence with prolonged (domestic) displacement, but it diverges from requirements under the Refugee Convention. Article 1C (5) permits states to withdraw refugee status if, among other things, circumstances that gave rise to that status no longer exist. As the  UNHCR explains, “the changed situation must address the causes of displacement. Further, changes must be fundamental in nature, so that the refugee ‘can no longer…continue to refuse’ home state protection”. Referral to an IPA undermines both these guarantees.

Conclusion

In Norwegian practice, the focus of asylum authorities is not on the risk of persecution but on the possibility of protection somewhere, no matter how unreasonable the consequences are for the claimant. Even the threshold of  ‘effective protection’ is undermined by narrow interpretations of who can provide it, how long it may last and how big the area in which it exists needs to  be. The dynamics set in motion in 2015 create a dangerous precedent in a region where national authorities are anxious to exploit all possible arguments for refusing claims to refugee status.

PRIO Research Featured at Conference on Development Research

Presenting a newly funded research project on refugee education

23 January, Research Director and Professor Cindy Horst presented the newly-funded REBuilD project to an audience of government representatives and NGOs invited by the Norwegian Agency for Development Cooperation (NORAD) and the Research Council of Norway (RCN). The aim of the conference, launching the new projects funded under the NORGLOBAL-2 program, was to improve the communication between researchers and practitioners, in order to guarantee that research results are better informing development policy and practice. The REBuilD project asks how we can best support refugee children and their communities to build durable futures, when it is unclear where those futures will be. The project focuses on two of the largest populations of refugees: Somalis and Syrians, and involves fieldwork in cities and refugee camps in Kenya and Lebanon, as well as in Somalia with returnees from Kenya.

Horst’s presentation can be found here:
NORAD Jan 2018 (Horst)

Syria’s humanitarian crisis

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The Syrian revolt has over the past three years escalated into a massive humanitarian crisis with regional implications. At present, almost half Syria’s pre-war population (22 million) is displaced, including 6.5 million internally displaced persons (IDPs) and 2.3 million refugees. Inside Syria, almost ten million war-affected residents need outside assistance, the majority of them being homeless. At the Kuwait donor conference in January 2013, the international community pledged USD 1.5 billion in aid to the “Syria Regional Response Plan”. In June, the amount was tripled to USD 4.5 billion, the largest humanitarian appeal in UN history. By end of the year the amount was raised to USD 6.5 billion the largest-ever appeal for a single crisis.

 Complex emergency

The Syrian civil war has turned into a complex emergency with brutal violence, massive displacement and regional havoc. The most intense battles have taken place along the Hama-Homs-Idlib axis. This is the most ethnically diverse part of the country, where the Alawites – who make up about 12 per cent of the pre-war population – live side-by-side with the Sunni majority representing over 70 per cent. Strategically, the Syrian Army is determined to remain in control of the Homs-Hama “corridor” connecting Damascus with the Alawite heartland in the Latakia and Tartous Governates. For this reason, the Army has staged massive attacks on rebel strongholds in Homs, Hama and Aleppo ruining the built environment, killing civilians and causing repeated displacement.

Displacement crisis

The Syrian displacement crisis is consistent with (global) panel data surveys demonstrating the robust link between violence and displacement. The turning point was the the Syrian army’s ground assault on Homs in March 2012, which changed the nature of the conflict,from a security to military approach that led to a steep rise in casualties and displacement (Figure 1). In mid-2013, the UN casualty figure was more than 100,000 dead, with current estimates reaching 130,000 (Dec. 2013). Since the start of 2013, nearly 50,000 people are fleeing Syria every week. With no diplomatic or military solution in sight the Syrian civil war will continue. The displacement crises will therefore expand too, with dire consequences for regional stability.

 

Syria displacement crisis (Figure 1)

Figure 1: Syria displacement crisis: March 2011–December 2013 (33 months)
Sources: Data compiled from several sources: HIU, ICDM, OHCHR, SNC, UNHCR, UNOCHA.
 
This blog post is part of a longer article analysing the Syrian displacement crisis within the context of contemporary forced migration theory and assesses its impact on the region, forthcoming in Maghreb-Machrek (2014). 

Sexual Violence: Monopoly of victimhood?

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In Uganda, data suggests that not only women and girls are sexually assaulted in times of conflict and war, but also men and boys. Yet, male rape victims are almost invisible in interventions and even debates on conflict related sexual violence. Attention is overwhelmingly focused on girls and women. -There is a monopoly of victimhood, says Chris Dolan, Director at the Refugee Law Project at the School of Law, Makerere University.

Women’s protection needs have forcefully been put on the international protection agenda in recent years. The United Nations Security Council Resolution (UNSCR) 1325 states that all parties involved in a conflict must take measures to protect women and girls. The message that women and girls are particularly targeted by the use of sexual violence is also at the forefront in resolutions from 2008 and 2009. What are the consequences of this need to specify protection on the basis of gender?

There has been no corresponding explicit recognition of how sexual violence is used against and affects boys and men in conflict situations. The use of language in resolutions from the Security Council is characteristic of how male victimhood has been treated in the discourse of sexual violence, more broadly says Chris Dolan, Director of the Refugee Law Project at Makerere University.

Invisible victims of sexual violence
Chris Dolan recently participated in the seminar “Gender and the Paradox of War Norms”, organized by the Norwegian Centre for Humanitarian Studies, where researchers working on protection practices in different parts of the world addressed civilians’ needs in conflict and war zones.

The regression to gender essentialism in the interest of a particular pro-women agenda has not only killed the essential emancipatory political potential of a holistic gender analysis. It is also undermining the capacity to provide protection in a meaningful sense, as it has pulled a veil over the protection needs of the other half of the population, says Dolan.

‘Men are strong, women are weak’
In the conflicts and civil wars in Uganda and Congo, rape and sexual assaults have been frequently used as weapons of war. Survivors do not only suffer from severe physical injuries, they are also stigmatized and shunned.

Dolan and his colleagues at the Refugee Law Project have interviewed many male rape victims from Congo and Uganda. According to Dolan, their experiences destabilize one of the most central pillars of patriarchy; that ‘Men are strong, and women are weak’.

The rape victims’ stories strongly suggest that women and men share certain forms of vulnerability in conflicts, he says.

According to Dolan, refugee camps should be key sites for investigations and interventions, and a systematic screening for sexual violence should be done in every conflict. The Refugee Law Project is currently involved in developing a screening method for refugees together with Johns Hopkins School of Public Health, based on their experiences with and interviews of refugees in Uganda and Congo.

Turning the tide
By asking men and women the same questions, the Refugee Law Project has uncovered that many victims of rape are men and boys. Some male rape victims have recently chosen to share their stories in international media and in their local communities. And for the first time, support groups are being made.

In 2013, the UNSCR 2106 for the first time attracted attention to sexual assaults against men and boys. Is this a sign that the tide is about to turn?

What comes out of committees’ talk is always the lowest common denominator. Fortunately, the lowest common denominator is now shifting. The shift in UNSCR 2106 is a sign of progress, but we still have a long way to go. Sexual violence should not be treated as a binary female-male opposition. We need to rethink the way in which language is used, in documents on sexual violence in general, and in resolutions from the Security Council in particular. Even as we work on the language, we need to be developing best practice on working with men and boy survivors, recognizing that even as sexual violence often erases the gender binary, prevention of and responses to such violence need to be gender sensitive if they are to be effective, says Dolan.

Somali Repatriation Pact: Insufficient Progress

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On 10 November 2013 the Kenyan and Somali governments signed a tripartite agreement with the UNHCR on the fate of Somali refugees following months of negotiations. The agreement is to allow for the ‘voluntary’ repatriation of more than half a million refugees from Kenya to Somalia over a three-year period. While this is a sign of positive collaboration between Kenya, Somalia, and the UNHCR, and emphasis placed on the ‘voluntary’ nature of repatriation is encouraging, the agreement insufficiently address the issue of protection for refugees.

The Somali government does not have the absorption capacity needed to receive and resettle significant numbers of refugees from Kenya safely and humanely. The institutions responsible for a task of this scale are either chronically weak or nonexistent. Many of the factors that led hundreds of thousands of refugees to flee Somalia remain. A high proportion of the refugees are from regions that remain under the control of Al-Shabaab. Recent security gains are fragile and punctured by repeated terrorist attacks.

Economic recovery is slow and barely reaching the most vulnerable communities in Somalia. The cost of living is soaring. Infrastructure is in shambles. Land disputes are common and often violent. The Somali government and private landlords are now forcefully evicting IDPs in Mogadishu, many of whom recently arrived and have nowhere else to go. The IDP population in and around the city continues to swell as the government and International NGOs renege on commitments to establish new, safe, and sanitary camps outside of the city. The conditions within Somalia are not adequate to commence large scale repatriation of refugees. Vulnerable refugees must be returned to secure settlements where they can reestablish their lives.

Kenya has legitimate security concerns, particularly following the appalling attack on Westgate mall in Nairobi. Rhetoric concerning the culprits of the attack, however, has endangered both the refugee and non-refugee Somali community in Kenya. The recent short-sighted statement by the Kenyan vice president, suggesting that refugees ‘have become a shield’ for terrorism, has further endangered an already vulnerable community.

The welfare of innocent Somali refugees must be factored into Kenyan domestic security concerns. Repatriation efforts must be carried out in phases. Conditions must first permit for a voluntary return of refugees with guarantees of full protection. Adequate housing should be made available to the returning refugees. Without sufficient planning refugees will simply become IDPs in their own country lacking the meager support they are entitled to in Kenyan camps. A comprehensive arrangement, taking into account the welfare of the refugees, the security of the region, and the ability of the Somali government to absorb them into the society, is the only viable and humane solution. We warned of a “hasty repatriation” in our report back in March, you can read the full report here.

 

Note: This blog was originally posted on the website of The Heritage Institute for Policy Studies.

UNHCR – A Humanitarian Organization with a Mandate to Protect Civilians in Refugee Camps

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It is difficult to imagine a more humanitarian space than that of the refugee camp, whose foremost purpose is to provide refugees with temporary shelter, assistance, and protection until they are voluntarily repatriated to their country of origin, locally integrated in the host state, or resettled to third countries. The categorization of refugee camps as civilian and humanitarian is not, however, unproblematic. Refugee protection has always been deeply affected by greater security issues; rather than serving as civilian and humanitarian safe havens, camps for refugees (and internally displaced persons) have on a number of occasions become notorious for serious problems of insecurity, including armed attacks, arbitrary killings, torture, exploitation and military recruitment. But who can, and should, be held responsible under international law for these human rights violations?

This is the initial question discussed in my book Protecting Civilians in Refugee Camps: Unable and Unwilling States, UNHCR and International Responsibility. Here, I examine the United Nations High Commissioner for Refugees’ (UNHCR) international responsibility for human rights violations taking place in refugee camps. The book argues that UNHCR under certain circumstances can, and should, be held responsible under the International Law Commission’s nascent framework of the Articles on the Responsibility of International Organizations. Specifically, UNHCR’s international responsibility will depend upon an evaluation of the host State’s ability and willingness to provide effective protection.

UNHCR and the Protection of Civilians in Refugee Camps

The book essentially finds that UNHCR’s mandate to provide refugees with ‘international protection’ includes the provision of physical safety and basic rights, and that UNHCR furthermore holds an affirmative duty to act and intervene to secure the basic human rights of refugees. That said, it is clear that UNHCR occupies a challenging place in the international arena when it is both entrusted with an ambitious mandate and also frequently caught in a vice between the preferences of actors such as donor governments and host states. It is to be a norm entrepreneur, supervisor and enforcement agency of refugee rights at the same time as it is expected to be a cooperative partner to states and NGOs, and the ultimate provider of material assistance. As Protecting Civilians in Refugee Camps highlights, UNHCR’s protection role has become increasingly pragmatic, focusing more on the provision of food and shelter, and refugee security has as such had to give way for other competing priorities.

Considering the clear link between UNHCR’s international protection mandate and physical security, why, then, does the physical security and basic human rights of refugees and others of concern to UNHCR appear to be only a peripheral issue within the organization? The book presents several explanations. Firstly, UNCHR appears to believe that if it ‘flaunts’ its own responsibility, this risks detracting attention from the responsibilities of host states, who, after all, have the primary responsibility to protect refugees on their territory.  Secondly, however, because it surfaces at the crossroads between state sovereignty, national security and international human rights, refugee security is generally considered to be ‘high politics’ and exposes a tension between human rights norms and realpolitik. Organizations such as UNHCR tend to view attention to physical protection issues as a threat to their neutrality, impartiality and independence. Thus, for fear of jeopardizing relationships with governments, UNHCR appears to emphasize ‘soft diplomacy’ and prioritize less controversial tasks, such as the provision of material assistance, in the face of ‘hard’ human rights concerns. But, as even UNHCR itself has noted, it has a duty to fulfill its mandate regardless of ‘political circumstances and imperatives’. UNHCR’s challenge thus lies in staying true to its main principles, and not throwing them overboard as soon as it meets resistance. This logically means that UNHCR also cannot expect to please all sides.

Without downplaying the fact that UNHCR often has to make choices between bad and less bad options on the ground, it is arguable that without an increased focus on basic human rights and physical protection, UNHCR runs a real risk of ‘simply administering human misery’. More importantly, ignoring refugee security arguably affects the situation as much as confronting it. While UNHCR’s international protection mandate may be ready to be fully implemented in theory, because it appears not to be a current priority within the organization, it is far from certain that the mandate is fully understood, and applied thereafter, among the main actors concerned with protection and security within UNHCR.

Wide Scope for Improvements

Protecting Civilians in Refugee Camps suggests that there is wide scope for improvements within UNHCR aimed at strengthening refugee protection. First, in order to ensure full and proper implementation, it is important to clarify UNHCR’s mandate vis-à-vis physical security both internally within the organization, and externally among its operative and implementing partners. In 2009, the UN Office of Internal Oversight (UN OIOS) undertook an extensive study of UNHCR’s approach to the safety and security of staff, operations and persons of concern. This study suggested that UNHCR’s mandate was often misunderstood among the main actors dealing with security issues.

A clarification of this mandate will hopefully also lead to a security focus that is more proportional between staff security and refugee security, and, on an international level, this may alleviate the current eclipse of UNHCR’s mandated responsibilities vis-à-vis physical protection of refugees and others of concern in refugee camps by the more pragmatic and operational activities of actors such as UN OCHA. In fact, recent years’ activities within the Security Council concerning the ‘protection of civilians’-framework have contributed to UN OCHA, whose mandate is essentially that of coordinating humanitarian response (and thus not protection), becoming the primary actor involved in refugee camp security. In a 2005 report by the UN Secretary-General, no mention of UNHCR’s role in protection monitoring is made – rather it is suggested that UN OCHA shall collect data on attacks against refugee camps and collate baseline information on issues such as security related to internally displaced persons.

A clarification of UNHCR’s mandate may also lead to improvements with regard to training and administering UNHCR staff: a shortage of protection staff seems to be an endemic problem within the organization, and is something which clearly has serious consequences in some operations where UNHCR has not even been aware of persistent rights violations. UNHCR must also reward staff who voice protection concerns – currently there appear to be no institutional incentives to do so.

It is also arguable that the current system of periodic rotation of staff between departments, headquarters and the field deprives UNHCR from any true expertise or staff specialization in the field of refugee physical security. Roughly speaking, there seems to be a general sentiment that each individual UNHCR staffer shall be able to tackle most of UNHCR’s various tasks, whether these tasks concern refugee camp security or material assistance. This system arguably impedes upon UNHCR’s possibility to use the skills acquired over the years to best effect. As one UNHCR staff argued in a 2005 study of UNHCR organizational culture: ‘Rotation is a serious problem … If a finance specialist has to move and become a programme person, it lowers things down to the lowest common denominator.’

Monitoring the human rights situation is an integral part of UNHCR’s exercise of its international protection mandate, and international protection cannot be advanced without full knowledge and understanding of the human rights situation. It appears as if UNHCR needs to reconsider the manner in which it collects, analyzes and, perhaps most importantly, uses the information on protection concerns in refugee camps. UNHCR’s experiences with security concerns in refugee camps are currently neglected or disguised through generalizations and shortcuts in the monitoring process. As such, new incidents can flourish. UNHCR’s internal evaluations have also shown that many field staff are not sufficiently aware of the relevant policies and guidelines, or about their monitoring roles and responsibilities. This was also emphasized in the 2009 UN OIOS Report, which inter alia found that UNHCR lacked adequate guidelines for security and protection officers in the field to enable joint assessment and physical protection of refugees and other persons of concern, and that the accountability framework, reporting mechanism, definition of security responsibilities and arrangements for monitoring the implementation of security measures were not adequately defined. It is clear that the protective effect of UNHCR’s protection monitoring depends upon how the gathered information is used.

More Protection, Less Material Assistance

A renewed focus on UNHCR’s international protection mandate might entail that UNHCR focuses less on providing material assistance. However, experience suggests that in cases where UNHCR has been unable or otherwise unwilling to provide material assistance, other organizations have stepped into the void. Such was the case in Thailand, when UNHCR sought to minimalize its involvement in the camps that were controlled by Cambodian military factions. This clearly suggests that there is an abundance of international and non-governmental organizations that can provide material assistance. Only UNHCR, however, has the mandate to provide international protection.

UNHCR’s accountability is the topic of an upcoming panel – organized by members of and affiliates to the Norwegian Centre for Humanitarian Studies – at the Humanitarian Studies Conference in Istanbul October 24-27, 2013. More information about the conference and the panel ‘UNHCR and the Struggle for Accountability: an examination of parallel regimes’ is found on http://www.humanitarianstudiesconference.org/. The book Protecting Civilians in Refugee Camps: Unable and Unwilling States, UNHCR and International Responsibility can also be pre-ordered through Brill’s webpage: http://www.brill.com/products/book/protecting-civilians-refugee-camps.

Humanitarian challenges in Syria

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NCHS arranged a seminar on the humanitarian situation in Syria. During the discussions it was made clear that the world had not seen a humanitarian emergency of this scope since Rwanda 1994. Lack of access inhibits humanitarian operations directed at the Syrians in Syria, while the programs for the protection of refugees are still underfunded. There are many potential partner NGOs operating inside Syria, but the large international humanitarian NGOs have a hard time finding implementing partners. NGOs that are reliably neutral and have a full mastery of Western accounting standards – are in short supply. It was noted that work in Syria was very dangerous for both the media and the humanitarians; kidnappings, arrests, and executions have effectively blinded the international community and largely incapacitated the humanitarian response.

The seminar was opened by a rough introduction to the current positions in the civil war: The cleavages are many and, unfortunately, multiplying. A rough summary is that the Assad regime controls areas to the south and west; the opposition controls areas in the north and east – while the northern most area is controlled by Kurdish nationalists. The conflict threatens the stability of the entire region. Turkey is under pressure by a massive influx of people fleeing the conflict, Jordan is hard-pressed by its’ own population which can potentially gain support from Syrian refugees, and the population of Syrians in Lebanon is closing in on the 25 % mark. Considering Hezbollah’s close affiliation with the Shiite regime in Syria, and that the majority of fleeing Syrians are Sunni, this can potentially destabilize the political balance in Lebanon.

It was claimed that the international actors have a disproportionate focus on refugees; to the detriment of the internally displace inside Syria. A partial explanation for this is that it is very difficult to act inside Syria. The security situation is tough for the international humanitarians and the complex political situation makes it difficult to choose local implementing partners. It was also emphasized from many speakers that the neutrality had become an impossible ideal inside Syria. It is virtually impossible to get a full overview of political implications and potential offences taken at any given course of action. Meanwhile the UN is forced to work within the framework of Syria as a sovereign state, granting the Assad regime authority over how they conduct their humanitarian efforts. The national Red Cross Society also has close ties to Assad’s administration. Concern was expressed by several speakers that humanitarian relief could be abused by Islamist elements in the opposition. To this it was objected that the Islamists were there to stay. Neglecting humanitarian obligations in fear of supporting radical Islamists could potentially lead to a failure similar to the one faced in Somalia. The consequences could be catastrophic for the Syrian population.

The potential for abuse of humanitarian aid to promote political and military goals is large. At the same time the situation is dire. With winter on the way it can become necessary to sacrifice neutrality in order to ensure that the aid can reach those in the greatest of needs.

The complete video of the “Humanitarian Challenges in Syria” seminar (in Norwegian) is available here:

Part 1

Part 2

 

Somalia from Humanitarian Crisis to Struggling Statehood

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March 21, more than 90 people attended a Breakfast seminar “Return to Somalia, a New Era” jointly hosted by NCHS and PRIO’s Migration Research Group. Speakers were Abdi Aynte, executive director of the Heritage Institute for Policy Studies (HIPS) , HIPS researcher Anab Ibrahim Nur and PRIO senior researcher Cindy Horst.  HIPS is a recently established Somali think tank based in Mogadishu, and a collaborative research partner to NCHS on the Somali case study for the Protection of Civilians project. A recording of this event is available here.

Abdi Aynte explained that after more than 20 years of wars and widespread disorder, Somalia entered a new era of optimism during the last quarter of 2012. A UN-backed process culminated in the selection of 275 members of parliament, and a new leadership was subsequently elected. The capital Mogadishu is considerably safer than it was two years ago. The new government has extended its domain of control to a number of regions outside the capital, and business vibrancy and civil society activities are slowly but steadily returning to Somalia. Despite the progress, significant challenges remain. The Somali state is profoundly fragile, and the state of chronic contestation over political and resource control persists. The new government has yet to articulate a set of national policies on most crucial issues, and the nature of Somalia’s federal structure remains disputed.

In her presentation (available here, under related files to the left), Cindy Horst discussed protection, displacement and return to Somalia. Her main message was that considering the profoundly fragile state of the road towards stabilization in Somalia, it is very premature to return people there at the moment. Not only can their protection not be guaranteed, but ultimately, a large influx of “involuntary returnees” is likely to destabilize an already fragile situation in the country. Horst also argued that the increasing return visits and stays of Somali diaspora to places like Mogadishu cannot be used as an argument to force others back, as protection upon return depends on many different factors – not the least having a foreign passport that allows a quick exit again if the security situation turns bad. She expressed her concern over the shrinking protection space for refugees and IDPs worldwide – not just affecting those trying to find protection from violent conflict but also increasingly in the transitional phase towards stability.
Both speakers asked a number of critical questions relating to the issue of Repatriation and “Voluntary” Return: What will be the humanitarian implications as the Kenyan government attempts to repatriate more than half a million Somali refugees?  Many Western countries have buffed up their repatriation programs, including repatriation of rejected asylum seekers and also potentially Somalis with a criminal record. What will be the plight of these civilians and what kind of protection is available for them once they get off the plane in Mogadishu? While the new Somali government has started to reach agreements with a number of countries offering conditionality packages (aid for return), can it deal with the impact of a large influx of people?

Three specific issues were highlighted in the discussion that followed the presentations. The first is the Contested Role of the Diaspora as Humanitarians and Leaders and the development of what has been termed ‘Diaspora Hate Syndrome’ in Mogadishu and other places.  While the Diaspora has often played an important role in providing humanitarian aid for Somalis inside Somalia, the influx of a large number of Somali individuals carrying European, American or Australian passports who want “top jobs” in the reconstruction phase is currently generating tension on the ground.

The second concerned the proliferation of land disputes, which is becoming a topic of particular concern. As noted in a 2009 report by ODI on land, conflict and humanitarian action, “Land and property disputes tend to increase in the post-conflict period, particularly in the context of large-scale returns of displaced populations. If these issues are overlooked, they are likely to threaten the fragile stability of post-conflict transitions”. Hence, one of the most acute needs  is for the government to re-establish some way of managing the increasing number of land disputes, sometimes fueled by individuals in control of old registries issuing deeds and titles.

Finally, the international humanitarian community, which has a less than impressive track record in Somalia must now face up to new challenges. As pointed out in a 2012 report by Refugees International: “With security in Mogadishu improving, international aid agencies should be able to increase their presence on the ground, allowing them to learn more about how these gatekeepers operate and to whom they are connected. With this increased knowledge and greater presence, the aid system in Mogadishu can become more open and accountable”.