Are regional approaches to refugee protection really the best way forward?

Regional approaches are often presented as a promising approach to the protection of refugees and the search for durable solutions. The international organisation mandated to support refugees, the United Nations High Commissioner for Refugees, has often advocated for and been closely involved in regional arrangements for protection of refugees. Penelope Mathew and Tristan Harley take a closer look at the issue.

Significantly, regional arrangements may offer the prospect that responsibility for refugee protection and solutions will be equitably shared among participants in the arrangement, whether by hosting refugees, financing refugee protection or sharing other resources such as expertise. Importantly, sharing responsibility for refugees equitably among states will benefit states as well as refugees. Although refugees are often perceived as a burden, studies have shown that refugees contribute to their host societies and this is true in developing as well as developed countries. Refugees may complement rather than displace citizen workers, for example.

Firm standards for responsibility-sharing have not been agreed at the universal level. The 1951 Convention relating to the Status of Refugees has laid down an important precept concerning responsibility for refugees — that we do not return refugees to a place of persecution for, as the framers recognized, to return a refugee would be tantamount to delivering him or her into the hands of the persecutors. This has gradually evolved to a recognition in other treaties that people should not be returned to irreparable harm. However, an attempt to secure a binding provision in the 1951 Convention concerning refugee admission according to quotas failed. The Convention merely refers in its preamble to the need to share responsibility.

Will regionalism necessarily lead to more responsibility-sharing, and is it effective as a model for refugee protection?

Drawing on Louise Fawcett1, regionalism should be understood as the promotion of common goals among a group of states that are more than mere neighbours and constitute an imagined community, or share certain patterns of behavior or a geographical relationship and a degree of mutual independence. Regional approaches to refugee protection are thought to be appropriate because refugee movements are frequently regional in location and impact. As regional actors are more directly affected by the challenges surrounding refugee movements, they are more interested and, perhaps, more capable of understanding and therefore responding to refugees’ needs.

Regional groups may be more likely to reach agreement given their smaller size and the potential for shared history and culture as compared with universal organisations, which may be subject to polarization and gridlock.

In the period immediately following the Second World War, universal institutions and approaches to the world’s problems were often favoured. Although regional institutions such as the Council of Europe were established, regionalism was often seen as either a stepping-stone or an obstacle to the grand goal of universal action. In some ways, however, refugee protection has always had a regional element. The 1951 Refugee Convention was originally temporally restricted to those refugees fleeing events prior to January 1, 1951 (the Second World War and its aftermath, particularly the division of Europe into East and West), and states parties had the option to limit their obligations to refugees fleeing Europe. This limited regional focus reflected the assumption that a legal response to refugee flows would not be required on an ongoing basis. With the adoption of the United Nations Charter and the Universal Declaration of Human Rights, it was hoped that conflicts and human rights abuses would not continue in the second half of the twentieth century or beyond. It was only in 1967, that the temporal and geographical limitations to the Refugee Convention were removed via the Protocol relating to the Status of Refugees.

It is clear today that the international refugee law system has not been able to adequately protect all those seeking and in need of asylum, with two major regions — Asia and the Middle East — largely remaining outside the universal instruments and offering important, but limited and tenuous protection to refugees. Examples of this are so obvious that they barely require further explanation, with the crisis in Syria being the example par excellence. It is staggering to think that there are currently almost 20 million refugees globally, and that most of the responsibility of hosting refugees is borne by developing countries least able to provide the protection required.

If we truly value the preservation of human dignity, then something more needs to be done.

It is in this environment that regional approaches are being promoted as a way forward. The optimism about regional approaches is arguably based on positive experience. Since the development of the Refugee Convention in 1951, regional refugee law has largely augmented the protection provided to refugees, rather than diminished it. This can be seen in the regional definitions of a refugee in Africa and Latin America, which supplement the international definition by incorporating refugees fleeing generalised violence. It can also be seen in so-called regional arrangements such as the Comprehensive Plan of Action for Indochinese Refugees, which, despite flaws in refugee status determination and restrictions on the liberty and freedom of movement for refugees and asylum seekers in Southeast Asian countries, provided protection to hundreds of thousands of refugees. Under this arrangement, countries in the region such as Hong Kong, Indonesia, the Philippines, Thailand and Malaysia agreed to provide temporary protection to refugees in return for long-term resettlement places being offered in developed countries such as the USA, Canada and Australia. Critically, this agreement involved countries within the immediately impacted region, and those beyond it.

When one probes a little deeper, it is clear that regional approaches are not always beneficial to refugees, and not always beneficial to the states involved. Australia’s pursuit of a regional deterrence framework, where refugees are effectively shut out of seeking asylum and shunted offshore to other states in the region, is particularly disturbing, not only for its clear violations of international law and appalling impact on the refugees themselves, but also for the ways in which these regressive approaches may spread to and impact on other parts of the globe.

Europe’s great regionalist project has done little to support the mass numbers of Syrian refugees on the other side of the Mediterranean. As European states tussle as to whether they should work together to collectively support refugees, unilaterally shut them out or collectively seek to contain them in countries of first asylum, millions of refugees continue to live in precarious positions and many risk the perilous journeys by boat and other means to Europe. Countries such as Turkey, Lebanon, Jordan, Iraq and Egypt have unfairly been required to take the lion’s share of responsibility, for no other reason than geographical proximity.

A comparative analysis of the historical and current regional approaches to refugee protection reveals that there are some merits in pursuing regional courses of action. Regional arrangements have often been great testing grounds for the development of protection initiatives, such as the linkage between refugee aid and development and the implementation of alternative, safer migration paths such as labour mobility programs or the unlocking of resettlement places. They have also been successful at times in generating greater protection outcomes for refugees than perhaps would have been possible otherwise. However, regional approaches are not the only solution and they need to be treated cautiously. Regional approaches are susceptible to gridlock and manipulation from governments perceiving sovereignty, citizens’ interests or their own re-election prospects as incompatible with receiving and protecting refugees. Regional approaches are sometimes used by states to shift rather than share responsibility for refugees.

In the context of climate change negotiations, Robyn Eckersley2 has argued that perhaps a workable approach brings to the table the most capable, the most responsible and the most vulnerable states to address the particular situation. When dealing with refugee protection, this would likely involve those countries receiving large numbers of refugees at their borders as the most vulnerable, and states with greater economic strength and institutional and technical knowledge as the most capable. States that are most responsible for the situation may include the refugees’ countries of origin, whose cooperation may be essential to finding a solution for the root cause of refugee movements, but which cannot participate in protection or solutions other than refugee repatriation. They also include states responsible due to acts of foreign aggression, colonial enterprise, or other factors contributing to the displacement, which on occasion may agree to accept greater responsibility for refugee protection.

If we are truly willing to find solutions that equitably share the responsibility for financing and hosting refugees, then it may be that this form of cooperation, which suggests a degree of inter-regional cooperation between the Global North and the Global South, is a better approach than a purely regional approach. The critical question is how to shift developed states’ preference for deterrence and containment — what Matthew Gibney3 has called ‘engineered regionalism’ whereby the North simply keeps the South out.

1 Louise Fawcett is Professor of International Relations at Oxford University
2 Robyn Eckersley is Head of Political Science at University of Melbourne
3 Matthew Gibney is Elizabeth Colson Professor of Politics and Forced Migration at Oxford University

Penelope Mathew is Professor and Dean of Law at Griffith Law School and Tristan Harley is Solicitor of the Supreme Court of New South Wales, Australia. Their new book published by Edward ElgarRefugees, Regionalism and Responsibility is out in July.

Originally published on Elgar blog, republished under Creative Commons Attribution 2.0.