How do humanitarian organisations provide legal aid to refugees in countries that do not have any refugee-specific legislation and where rule of law is largely absent? I spent most of 2020 examining this question closer in my MA thesis focusing on the legal aid program of one international humanitarian organisation in Lebanon. More specifically, I sought to understand how Lebanon’s legal and policy framework on refugees influenced this organisation’s legal aid operations, and which strategies were used to promote and to improve refugee protection in this context. As I will argue in this blog post, the endemic lack of rule of law in Lebanon has discouraged the organisation I studied from outrightly challenging the restrictive refugee policies of the Lebanese government.
Refugee legal aid in the context of a humanitarian operation
The humanitarian response to influx of Syrian refugees to Lebanon has been among the largest humanitarian operations globally. The legal aid program I studied is operated by one of the leading humanitarian NGOs in Lebanon and specifically targets refugees and others affected by the Syrian crisis. The program offers information sessions, legal counselling and representation on different predefined legal topics and is also involved in legal research and advocacy.
Legal aid is provided in a context of increasingly restrictive policies with regards to refugees, and a justice system suffering from endemic lack of rule of law. Despite the fact that refugees make up a quarter of its population, Lebanon is not a party to the 1951 Convention Relating to the Status of Refugees, and the country does not have any formal legislation affording any special status to refugees. Ten years into the Syrian crisis, the situation for refugees in Lebanon is becoming ever more precarious. As a result of tightened regulations, it is estimated that only 22 per cent of refugees in Lebanon have legal residency status. Without a valid residency visa, Syrian refugees are considered illegally present in the country and can face criminal sanctions that might lead to arrest, detention, deportation orders or deportation. To avoid interactions with the authorities, refugees are restricting their movement, limiting their access to basic services such as education and health care.
This situation is further aggravated by the fact that Lebanon’s sectarian power sharing system – largely based on elite-bargaining and clientelist networks – uneasily interacts with institutionalized responses to refugee protection and principles of rule of law. The presence of refugees is largely governed through elite-bargained decisions, some of which are kept confidential. Political interference with the judiciary is also not uncommon, and judgements challenging the political interests of the Government are not necessarily enforced. As such, the lack of rule of law affects not only the nature of Lebanon’s refugee response, but also the prospect of challenging it through the use of legal mechanisms.
Manoeuvring Lebanon’s refugee policies and justice system
In my thesis, I argue that the lack of rule of law that is endemic to the Lebanese justice system has discouraged the humanitarian legal aid program from outrightly challenging the restrictive refugee policies of the Lebanese government. Rather than engaging in strategic litigation, I argue, the legal aid program pragmatically explores the possibilities for protection within the existing bounds of Lebanon’s legal and policy framework.
A main finding in my work is that the legal aid program I studied is hesitant to engage in strategies that directly challenge the Government’s restrictive refugee policies either in court or through advocacy. As they often owe their positions to political leaders, judges are generally unwilling to challenge the Government’s policy by accepting pro-refugee argumentation. In the few successful cases, the judgements have not necessarily been enforced. Political interference with the justice system seems thus to discourage the use of strategic litigation.
In addition, by exposing individual refugees to the authorities, the legal aid program often considers that directly challenging political interests comes with a risk of harm for the individual concerned. Informed by a rights-based approach to humanitarian assistance, the legal aid program is committed to the ‘do no harm principle’. In this case, this principle seems to prevent the use of more confrontational strategies altogether. The humanitarian organisation’s dependency on the cooperation of the Lebanese government in order to fulfil its functions also makes it vulnerable to any backlash that could be triggered by directly challenging the Governments’ refugee policies.
In this context then, the focus of the legal aid program is less on strategic litigation and more on administrative procedures. As refugees are not afforded any special status under Lebanese law, the legal aid provided by this organisation is focused on assisting refugees in navigating their options within the fragmented and often inconsistently applied legal and policy framework. The activities related to legal residency thus focus on the administrative procedures available to renew or regularize residency at the General Directorate of General Security (GSO), either based on a UNHCR registration certificate or a ‘pledge of responsibility’ by a Lebanese national. For example, even seemingly straightforward administrative procedures for legal residency and civil registration require legal representation due to burdensome document requirements and the Government’s inconsistent application of these. And as I specifically discuss in my thesis, the legal aid program seeks to improve refugees’ access to civil documentation by engaging with the relatively independent institutions of the religious courts and the elected neighbourhood leaders, the Mukhtars.
Possibilities for protection and potential for harm
Providing legal aid within a legal and policy framework that is inherently hostile to refugees is not a straightforward task. In my thesis, I discuss the ways in which the legal aid program’s politically pragmatic approach, in its quest for practical solutions, in some cases may result in increased protection in some respects, but heightened protection risks in other.
In 2015, on the request of the Lebanese government, UNHCR suspended its registration activities and no longer provides ‘new’ refugees with a UNHCR certificate. This means that currently, the only way to secure legal residency for those unable to obtain this certificate is to find a Lebanese national willing to ‘pledge responsibility’ for their stay.
Residency based on a ‘pledge of responsibility’ is not identical to the regions’ infamous kafala system but it mirrors the same exploitative dynamic, as the migrant’s residency is tied to the contractual relationship with the employer sponsoring the residency. In response to reports of migrant workers suffering horrific abuse under the kafala system, numerous rights groups have called for the dismantling of this system altogether, although not specifically with regards to the ‘pledge of responsibility’ available for Syrian refugees.
Because it is currently the only option of legal residency for a large number of Syrian refugees, the legal aid program’s assistance in obtaining residency based on a ‘pledge of responsibility’ is indeed a pragmatic solution. This approach nevertheless raises questions about the role of humanitarian organisations in assisting refugees to enter into a contractual relationship which, on the one hand, may protect them from the severe consequences of illegal stay, but, on the other, might expose them to exploitation in the hands of potentially ill-meaning sponsors. Choosing between the devil and the deep blue sea, as the saying goes, is often a fundamentally difficult question – both legally and morally.
My study of the legal aid operations of this one humanitarian organisation in Lebanon sheds light on the dilemmas humanitarian legal aid providers are confronted with when they operate in contexts similar to that of Lebanon, where rule of law is largely absent, and where the legal framework does not provide for the protection of refugees. More than anything else, however, my study raises more difficult questions than it answers: In the pursuit of refugee protection, to what extent can – and should – humanitarian organisations engage in principled and sometimes outrightly confrontational strategies that nonetheless may backlash? And to what extent should these strategies rather be pragmatic? In Lebanon, the legal aid program I studied balances these dilemmas by manoeuvring the protection possibilities within the existing bounds of the legal and policy framework, while at the same time steering clear of direct confrontations with the Lebanese government.
Written by Marta Bivand Erdal (PRIO), Jørgen Jensehaugen (PRIO) & Maria Gabrielsen Jumbert (PRIO)
This post first appeared in Norwegian in Dagbladet. You can read it here.
The fire at the Moria camp underlines the depth of the crisis in the international system intended to protect people fleeing their home countries. Under the Refugee Convention, people in need of asylum must be given the opportunity to apply for it. The fundamental flaws in this system weighs heavily on the international community and will dominate the political agenda for the foreseeable future. At the same time, we are now seeing a deeply irreconcilable conflict between the domestic policy considerations shaping Norway’s immigration policy and the foreign policy ambitions that the country is pursuing. While Norway prepares itself for a term on the most prestigious and respected international forum, the UN Security Council, where its opportunities to exert influence will be significant, “on the home front” its approach to one of the great challenges of our time is to wait for other countries to take the initiative.
Weakened UN structures
UNWRA, which works with Palestinian refugees across the Middle East, is in serious financial difficulty after its main funder, the United States, withdrew its support for the organization in 2018. The agency is also struggling politically, because the Trump administration has taken the issue of Palestinian refugees off the negotiating table. The Palestinian refugee problem is particularly important because it illustrates, more than any other situation, how long a refugee crisis can continue if it is not solved.
Even so, UNRWA’s responsibilities are minor compared with the burden carried by UNHCR. UNHCR, which is responsible for all other refugees worldwide, is struggling because of the enormous and ever-growing number of refugees globally, and the shortage of political and economic will to take the measures necessary to resolve the problems. Solutions involve providing housing for people in need, and also finding enduring solutions to the situations that caused them to flee in the first place. In both cases, the central role of the UN in addressing these key questions, both as an international forum and through its specialized organizations, should be obvious. At the start of 2019, there were 79.5 million refugees worldwide. At that time, UNHCR had only half the funding it required for 2020-2021.
The burden-sharing principle is central to ideas about how the international community should assist refugees, but it is not legally binding. There are no mechanisms for establishing a reasonable and just method for making countries share the burden. As a result, the system depends on some countries taking the lead, setting the standard, and then bringing others on board. It is at the same time difficult to argue against the fact that countries such as Lebanon, Jordan, Italy, Greece and Turkey are in practice bearing far more than their share of the global challenge of providing protection for refugees.
Norway on the UN Security Council
Although refugees are not directly the concern of the UN Security Council, the UN’s reputation, credibility and effectiveness are weakened if its agencies and member states fail to resolve the various longstanding refugee crises. Accordingly, some connections should be made visible here: from the burned down Moria camp via Oslo and to the UN Security Council in New York. As the Norwegian government celebrated its successful campaign for a non-permanent seat on the Security Council, the institutional difficulties concerning the protection of refugees follows it into the assembly rooms in New York.
Until Moria burned down, the Norwegian position was that Norway should contribute by accepting children from the camp, once another 10 or so countries had already gone ahead and provided assistance. It was clear that this policy was formulated with an eye on the domestic policy agenda, but if Norway is to take up one of the most important positions in international politics, then surely we should not be waiting for other countries to take the lead, so that we can follow in their footsteps. In this regard, Norway’s reputation as a major humanitarian power comes into play. Norway’s foreign-policy capital rests very much on this reputation.
Successful management of this legacy could both strengthen Norway’s position on the Security Council and encourage other countries to take their share of responsibility. This is needed.
Camp Moria, housing 13,000 refugees mainly from Afghanistan, burnt down on 8 September. The tragedy has been long in the making—Europe has failed the migrants in Moria for years, forsaking them to a sub-human non-life in overcrowded refugee camps. Those of us who hoped that the dramatic fire would act as a wake-up call have seen little progress this past week in the wake of the fire. Europe, except for Germany, has so far responded in a cold and calculating way.
The little response we have seen has mainly focused on unaccompanied children and to a lesser extent on families. The Netherlands, for example, has offered to receive a few hundred families from Moria. The ‘offer’ is even less generous than it appears, as their number will be deducted from the total number of vulnerable refugees to be received by the Netherlands on the basis of a standing agreement with UN refugee agency UNHCR, much to the dismay of the agency.
The focus on unaccompanied children plays into the primary feelings of sympathy of many Europeans. A Dutch woman who started a campaign to collect sleeping bags for Lesbos told a reporter from the national news agency in the Netherlands: “I am a mother. When I see children sleep on the streets, I must do something, no matter what”. It may be natural for people to respond more to suffering children than to adolescents and adults, but surely politics should not only be dictated by motherly instincts alone?
It remains important to unpack the thin policy response to the fire in Moria. The focus on children and families makes a false distinction among refugees that makes it seem as if only children are vulnerable. It is a cheap, yet effective trick that puts 400 child refugees in the spotlight to distract the attention from the almost 13,000 others that live in similar squalid conditions.
Unfortunately, we have landed ourselves in a time where official politics are not guided by cherished and shared institutions like the refugee convention, which stipulates that people fleeing from war are entitled to be heard in an asylum procedure and, while the procedure is pending, received in dignified circumstances. Instead, policies seem cynically oriented towards one goal only: deterrence. The underlying idea of policy comes across as something along the lines of “[l]et 13,000 people suffer in front of as many cameras as possible so that desperate people will refrain from crossing the Mediterranean to seek shelter and asylum in the affluent countries of Europe”.
While 13,000 people suffer, the gaze of Europe singles out several hundred children for our solidarity. The distinction between these children and the other refugees rests on two equally weak arguments.
Firstly, it is implied that children are more vulnerable than other refugees. Whereas this is true in some respects, the level of despair and hopelessness experienced by all people in Moria is shocking. During my visit to Lesbos last year, aid workers told me that many refugees in Moria—children, adolescents and adults—suffer from a triple trauma. The first one was caused by the violence that triggered their escape, the second by the long passage to Europe and the crossing of the sea, and, finally, new trauma arising from the dismal conditions in the camp, the permanent state of insecurity, and the lack of future prospects. A vast majority of the people in Moria qualify to be seriously considered in asylum procedures because they fled from the violence of war and are extremely vulnerable.
Secondly, the focus on children leans on an idea of ‘deserving’ versus ‘undeserving’ refugees. Children cannot be blamed for their situation and are presumed innocent. The same applies to women in the eyes of most people. Adult men, and especially single (young) men, on the other hand, are looked at with a multitude of suspicions. Men are associated with violence and often suspected to be culprits rather than victims of war. They are also distrusted as they may be associated with sexual violence against women that is indeed widespread, but certainly does not hold true for all men. Finally, they don’t solicit feelings of sympathy because they are considered strong and capable of managing their own survival. Or worse, they are considered fortune seekers instead of bare survivors of war.
However, it is a myth that men should not deserve our sympathy! In situations of war, men are more likely than women to be exposed to violence – killing, torture, arbitrary arrest, or forced subscription in a regular or rebel army. Traumatized and destitute, they find themselves in a situation where they do not qualify for many of the aid programmes that are based on the same gender biases and reserve their resources for women and children. Quite a lot of young men see no other option than to prostitute themselves in order to survive.
Singling out unaccompanied children therefore is delusional. It seems to be designed to placate the large numbers of Europeans who want to act in solidarity with refugees. Our politicians keep telling us that social support for refugees has dried up, but while they listen in fear to right-wing populists, they are blind to the wish of equally large constituencies that want to welcome refugees.
As we are left in anger and shame, let us not step into the false dichotomy of deserving/undeserving refugees. Policy should be guided by legislation, not by false distinctions that are based on and reinforce popular sentiments. All refugees in Moria, irrespective of their gender or age, should be able to tell their story while being sheltered in dignity. All these stories need to be heard in proper asylum procedures—without prejudice.
Written by Katja Franko (UiO) & Maria Gabrielsen Jumbert (PRIO)
This blog series first appeared on the Border Criminologies blog, and is re-posted here. Post by Katja Franko and Maria Gabrielsen Jumbert. Katjais 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 onthe humanitarian Search and Rescue, from the Nordic perspective.
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 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.
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.
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
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
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.
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.
Written by Liliana Lyra Jubilut (Universidade Católica de Santos), Marcia Vera Espinoza (Queen Mary University of London) & Gabriela Mezzanotti (University of South-Eastern Norway)
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’.
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).
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.
Cartagena Declaration and Its Regime
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, and adopted a regional approach to refugee
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 and in its support by the United Nations
High Commissioner from the beginning, Human Rights and other regional schemes such as
the Organization of American States (OAS) – which embraced the Declaration 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
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, 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
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.
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)
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).
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) is not only the more encompassing one, 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.
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.
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 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. The second follow-up meeting took place in 2004
and resulted in the adoption of the Mexico Declaration and
Plan of Action, 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 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
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.
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).
the coexistence of regimes of refugee protection in Latin America, 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.
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
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.
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.
Challenges in Refugee Protection in Latin America
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.
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).
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).
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
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
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.
 See Cartagena Declaration 2ndh preambular
 See, for instance, Cartagena Declaration 4th and 8th preambular
paragraphs, as well as its second, third and eighth conclusions.
 UNHCR was represented in the Colloquium that
adopted the Declaration and is mentioned throughout the document.
 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
 See Cartagena Declaration 8th preambular
 For the different wordings adopted by States
in incorporating this aspect of the Cartagena Declaration, see: Piovesan and
 For even broader possibilities of
application of this criterion see Weerasinghe (2018).
 The topic was also present in the Cartagena
Declaration (conclusion 9).
 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).
 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).
 For more on this see the upcoming volume
edited by Jubilut, Vera Espinoza and Mezzanotti (forthcoming).
Comissariado das Nações Unidas para Refugiados (ACNUR). Protección de
Refugiados en América Latina: Buenas Prácticas Legislativas, n/d.
Bruce; Cantor, David J. (Eds.). Human Rights and the Refugee Definition
– Comparative LegalPractice and Theory, 2016.
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.
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:
Filippo. Foreword: Regional solidarity and commitment to protection in Latin
America and the Caribbean. Forced Migration Review, 56, 2017: 4-5.
Silva, João Carlos; Jubilut, Liliana L. Venezuelans in Brazil: Challenges of
Protection. E-International Relations, 2018.
Liliana L.; Apolinário, Silvia M. O. S. A população refugiada no Brasil:
em busca da proteção integral. Universitas- Relações Internacionais,
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Liliana L; Apolinário, Silvia M. O. S; Jarochinski Silva, João Carlos. In: The
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to sovereignty as a legacy of the Cartagena Declaration and its review process
In: Jubilut, Liliana Lyra. Refugee Protection in Brazil and Latin America –
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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.
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
Liliana L.; Vera Espinoza, Marcia; Mezzanotti, Gabriela (Eds). Latin
America and Refugee Protection: regimes, logics and challenge, forthcoming.
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
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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.
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
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
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.
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
Roots of the reasonableness test in Norway
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:
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.
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
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
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 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.
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.
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:
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
Consequences for refugee claimants: the case of Afghan minors
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.
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.
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.
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.
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.