2018/12/01 by James C. Hathaway · 1 citation
Social Sciences · #International Development and Aid #Global Peace and Security Dynamics #Migration, Racism, and Human Rights
paper · doi:10.1093/ijrl/eey062
openalex publication_date 2018/12/01 · openalex created_date 2025/10/10 · openalex updated_date 2026/08/01
During the drafting of the 1951 Refugee Convention, a non-governmental observer – clearly frustrated by the difficulty of securing firm commitments to protect refugees – commented that: decisions had at times given the impression that it was a conference for the protection of helpless sovereign states against the wicked refugee. The draft Convention had at times been in danger of appearing to the refugee like the menu at an expensive restaurant, with every course crossed out except, perhaps, the soup, and a footnote to the effect that even the soup might not be served in certain circumstances.1 Despite Mr Rees’ pessimistic assessment, two of three key elements of a binding and powerful commitment to refugees were ultimately secured in the Refugee Convention. First, States agreed to a common definition of refugee status, which has largely withstood the test of time. Secondly, and equally importantly, they committed themselves to what remains an extraordinary catalogue of refugee rights – sensibly oriented to the economic empowerment of refugees, yet flexible enough to take real account of the circumstances of the States to which they flee. The major failing of the Convention, however, was the absence of agreement on a third key element: a common operational mechanism, in particular one that would ensure that protection burdens and responsibilities are fairly shared among States.2 Mr Rees’ unhappy restaurant menu metaphor would actually be more apt to describe the recently completed effort to respond to the missing third (operational) pillar of the Convention: the Global Compact on Refugees (Refugee Compact)3 and its companion Comprehensive Refugee Response Framework (CRRF).4 Despite the grand objective of moving beyond particularized duties to ‘provide a basis for predictable and equitable burden- and responsibility-sharing’5 among States, what we’ve been offered is very much a menu of possibly wonderful courses (we’re not sure, however, since the descriptions are vague). Indeed, this is not really a menu so much as an indication of items that might (or might not) be available on a given day. In fact, this is not really even a (quasi-) menu for a restaurant; it’s more about what might be offered in a special function dining hall that will only open if a truly large group of hungry people arrives (although we’re not sure how many have to show up before the chef and serving staff will come in to work). In short, this is not the menu for a restaurant that you’d want to count on when making plans to dine. Persisting with the status quo ad hoc, State-by-State approach to implementing refugee protection obligations is not an option.6 Too often, refugees are forced to risk their lives in order to save their lives, with increasingly sophisticated barriers to access forcing them to undertake risky voyages and to rely on smugglers and even traffickers to reach safety.7 The safety on offer is in any event too often illusory. While long-term detention in camps is less common than in the past, it is still the reality for roughly a third of the world’s refugees,8 with most others left to struggle in urban slums with no real access to the rights that the Refugee Convention in principle requires.9 Worse still, more than 13 million refugees – two-thirds of the total number of refugees – have been waiting an average of two decades for a durable solution, with none in sight.10 Of these, fewer than one per cent are resettled in any given year.11 In the result, just 10 – mostly very poor – countries now host more than 60 per cent of the world’s refugees,12 with the entire developed world taking in only 15 per cent of those in need of asylum.13 And yet those same rich countries spend at least US20 billion each year to fund their refugee reception efforts,14 more than four times the amount the United Nations (UN) refugee agency has available to meet the needs of the 85 per cent of refugees in poor countries.15 The result is a protection regime that is risky, chaotic, and debilitating, with resources grossly misallocated relative to needs, and which does not provide durable solutions for most refugees. If ever there were a case for a dramatic and fundamental reform, it is surely the current mess of a global refugee system. Yet, the answer offered by UNHCR under the Refugee Compact process is decidedly ‘thin’. Rather than proposing, for example, a binding optional protocol to remedy the operational deficiencies of the Refugee Convention,16 the refugee agency has instead drafted a highly partial Compact, applying to undefined ‘large’ movements of refugees.17 If a situation is so defined, the only thing promised by the Compact is that its principles will serve as guideposts for a never-ending series of discussions.18 We will reinvent the proverbial wheel each and every time there is a ‘large’ movement of refugees, since every situation will require a new agreement,19 which will only ‘normally’20 be based on the listed, incredibly vague principles. In truth, the clearest output of the Compact is that there will be lots and lots of meetings to chat about how best to respond to ‘large’ refugee movements: we will have a periodic Global Refugee Forum;21 high-level officials’ meetings between forums;22 meetings of national steering groups;23 Support Platforms;24 solidarity conferences;25 and regional consultative mechanisms.26 And these will be supported by ‘a multi-stakeholder and partnership approach’27 comprising consultations with refugees and host communities, humanitarian and development actors, the UN system, local actors, networks of cities and municipalities, parliaments, faith-based actors, public–private partners, sports and cultural organizers, and yes – even a global academic network!28 The Compact, in other words, is all about process – a bureaucrat’s dream perhaps, but nothing that comes even close to dependably addressing the operational deficits of the refugee regime. Why were we presented with such a tepid response when the need for decisive action is so clear? Why a ‘thin’ approach to protection reform when something robust is so obviously what both refugees and the poorer States that receive most of them need and deserve? UNHCR defends its minimalist effort on the grounds that the current political environment is simply not receptive to big picture reform.29 It makes more sense, the agency suggests, to consolidate traditional standards in tandem with a voluntarist framework30 that will at least get States talking about burden and responsibility sharing. To strive for more would be to risk complete failure. In fairness to the agency, there is at least some academic support for its cautious approach. Michael Ignatieff, for example, has recently advocated a ‘thin’ approach to global justice on the grounds that there is no global normative consensus on what he terms the ‘one world perspective’: As politics … the one-world perspective is not making much headway. States are no closer to a morally rational way of allocating responsibility for action on climate change. Countries still impose immigration quotas … Citizens in most democracies believe that their own interests, democratically chosen, ought to prevail over the interests of people in other countries … The consensus has to be thin because it has to be pluralist …31 Perhaps even more ominously, Harlan Cohen has argued that there is a life cycle to multilateralism, and that we may have reached the point at which the post-Second World War multilateral initiatives simply are less valued than they once were because they provide too little by way of concrete deliverables at the national level. This lack of enthusiasm for grand multilateralism may argue for more modest global undertakings: Providing global public goods in a multipolar world may require smaller deals that can guarantee States specific, desirable club goods. International justice, for example, might have to move to the local level, take local interests more directly into account, and promise specific realizable benefits to the countries in question.32 These views seem on first glance to align with UNHCR’s ‘thin’ reform agenda. But on a closer reading, there are caveats embedded within these general calls for a thinner version of multilateral human rights protection that actually explain why we should not rush to embrace a ‘thin’ approach to reform of the refugee protection regime. Ignatieff’s reasoning, for example, is predicated on his view that what individuals share is not a language of the good or a global ethic, but rather a common desire in their specific local vernacular for a framework of expectations that makes their lives meaningful – what he calls ‘ordinary virtues’.33 When we make moral decisions, we reason based on our sense of a relationship to the other – in Hannah Arendt’s words, ‘men, not Man, live on the earth and inhabit the world’.34 So in speaking about asylum, Ignatieff writes: From an international rights perspective, provided a stranger meets the criteria for protection set down in international law, there is no upward limit to the number of people citizens are required to receive into their community. From an ordinary-virtue perspective, this idea removes from a political community its very sovereignty … From the ordinary-virtue perspective, the claims of the citizen must trump the claims of the stranger or democratic self-determination has no meaning.35 This is, of course, a view that is very confronting to those of us steeped in the language of universal human rights. But it is important to note where Ignatieff’s argument does not take us. He does not say that asylum cannot work under even an ordinary-virtues optic, but rather that what cannot work is the status quo approach to asylum: what is unworkable is the fact that it imposes unlimited and one-sided obligations on a given community based upon the simple fact of arrival. If, as Ignatieff argues, the most sensible role for international norms is to nudge ordinary virtues to enlarge the circle of moral concern,36 that requires real, affirmative action on our part to defuse the sense that the provision of asylum is inattentive to the concerns of receiving communities – to engage and answer the perception that there is ‘no upper limit’ to the duty to provide asylum to those who arrive. And that is a challenge that we can and should meet. Similarly, when Cohen questions the continuing appeal of multilateralism, he also insists that this is especially so when multilateralism ignores the importance of ensuring real benefits at the local level. His core argument is that ‘[w]hen material or political circumstances change and the costs of the agreement rise, the perceived benefits of staying in the agreement may be too low to keep a state in’.37 Again, this is a challenge that we can and should meet in a practical and dependable way. My point, then, is that even if you take the view – as UNHCR appears to do – that it is unwise simply to assume a strong commitment to global human rights or to multilateralism in general, then you should be advocating exactly the opposite of what the agency has proposed. If you believe that the commitment to global human rights is in retreat, then the answer is not a ‘thin’ version of protection under which we simply pay lip service to burden and responsibility sharing by setting up an endless loop of conversations. The answer is instead clearly and to show how a of sharing meet the needs of And if you believe that the commitment to multilateralism is in then the answer is not to but rather to show how a multilateral reform can be to at the local – real benefits for real people in real communities that receive refugees. In short, the thing we should be is – as UNHCR does – an endless of voluntarist that or may it is to this of ‘thin’ as a Compact on since it actually to be only an for undefined ‘large’ movements of refugees – that the current yet in no from the status where most of the resources are to the claims of a number of refugees to reach rich UNHCR’s reform of the of resources that provide a for all refugees, not just ‘large’ of refugees. if we are about the state of refugee protection in the world – and we should be – the best is a good protection real, and – not ‘thin’ – by a that not only more and more dependably for refugees, but which once and for the of approach to the of burdens and and is and embedded in real benefits to real host We cannot by down and that the to the of human rights and multilateralism can be over by vague principles with never-ending So what would a is a good robust – not ‘thin’ – to the current in the refugee protection The first and most – not even in the Global Compact – is access to While we ought to that is the commitment must be that refugees be to access the international protection in they can more barriers to no more politics of While this may like in the believe it is a that can be if the of a were to be only that – the point of into the international refugee system, with no immigration for that why spend of every year to something that has no for This to a of a robust for refugee status – and simple in the of – would take international of would be to refugees. The UN would then and move refugees to receive for the of in their of in order to and cultural which are to refugees on their in at least the the of quotas for refugee both and refugee would be into the system, on sophisticated to wonderful of such a is that the part of the would simply as smugglers and traffickers would no be to offer an immigration for their refugees might be – which is not by the Refugee – the time required to their status in the of first there would be no on of movement once they in their of protection for the of risk – no more in with what the Convention refugees would be to get on with their to set up their is that when to refugees are not only not but can actually be for development in their host we need to make asylum for poorer – who would under the to offer the share of protection for the of The current of forcing poor countries to for to fund the costs of and receiving refugees and the required would be by the international agency – with under a common – on for refugee rights by the receiving least as the would also provide economic to refugees and to the communities that receive them – refugees to those host communities, and to the to make the at the local and most importantly, this new would guarantee a to about a of refugees are to to their no more than those to a of truly protection that refugees to their host communities would make local a more – an answer for But if local is at the the would guarantee the of refugees access to – no more refugee with lives on for or – now with only the or so a year – would the core of States of We would need about million per – to the million now to make asylum claims in The of these countries would change from asylum to – a but on commitments would the developed world to protect refugees in an even as it would meet a in the current system, which of refugees in of this would require no of the Refugee it be an optional protocol that would come into as as a of or States were on The of would the for as States that have the Convention would come that they do so the risk of – with the guarantee of and human support of other This new of implementing the Refugee Convention, the of and refugees to their host and those States, be with less than the US20 billion each year by rich countries to their refugee – that would no be When the of that asylum in in in and is the with the to a common asylum might be we really this to refugee that we can do in the we an international agency International for make of who as a which States agreed to rely the World the International Refugee refugees from of to new where they their lives – with its own of no During the of people in the we set up an and to States in the with States – in which States to be sure that all refugees protection was to some in the and in and And most recently of just two what they had once they their traditional so that refugees be resettled in in just a under a that nothing on and which refugees to real people in their new communities to ensure and yes – one would of course to a common and before implementing a protocol at the global level, there is to support its practical The would provide a for and it would be for refugees. Refugees would not have to their lives on the to get access to since they would access the same protection regime with the same they a or for of would really be the protection that the Refugee Convention calls for – not the of refugee camps or urban most importantly, every refugee would get a durable within a of time. This would also be a much for the poorer countries that host 85 per cent of the world’s refugees, which would no need to for the of States, but would instead be the to protect refugees. protection would not just to refugees, but would also fund refugees to their host communities, so that would from the And regional host States would not the of as a for their open to refugees. To the refugees to or for local is not would be resettled to at the the would also be for the developed The would the and the of the refugee for economic States would have the time they need to concerns before refugees were into their under the And the on protection by would countries a role that is an than is or In short, the would be a of course, that this is a But then truly are a number of practical and but believe these can be First, there would need to be agreement on the that would both a sharing of burdens and responsibilities which would the of but on by and the has recently what is the most sophisticated and of with on both the and the States While in to believe that ought to a share for of burden sharing and human responsibility the point is that there are for Secondly, agreement on the there needs to be a strong and to the and But who would this if States be that there is if to State-by-State of what is a the refugee agency has to little in such a Indeed, and argue that UNHCR is to a new refugee regime as its no the to ensure refugee protection in the Yet, all concerns about how the agency has – with the International for at its as the new – an might not be that it actually is in the long-term to on its core and to show its to provide a real, and answer to one of the most political of our time. If UNHCR were to offer a real answer that and dependably that be a and most a of this – even one not of the Refugee Convention – requires a The of political on refugee protection at the is, however, have of course been when have to the challenge of and come to effort to the – a Refugee by from and – to but has offered only vague to But is it really too for example, to a under the World Refugee to it to a and of And with that a of and – and others – be the for a political these have their political to by refugees. these practical the key is it is to a that would refugees – to a in which they would receive protection for the of risk if is to This is as to the of refugees – human as they were of to be the from this but do in While it may be to asylum surely this is less than the result by the current under which resources are now on the 15 per cent of refugees to reach the developed world – and – resources are available to the 85 per cent of refugees who closer to In the fact that some 13 million refugees in the global are in refugee – long-term with no in – for the importance of some of the relative of refugees to reach asylum in States in order to do by the of refugees to more the moral of all refugees requires that we pay as much to those we as to those who are in our the need not – should not – a commitment to refugee if the – as believe it does – an can and should be in a way that the agency of refugees, within an of So as this argument is on of all refugees – not just those who make it to the developed world – that of a for in the has real The importance of refugee agency is also a of as has recently you refugees of we will have a in agency, of … smugglers and do not offer this approach as any of But that is the of the real should be a for a global and of refugee protection is a to than what is on offer under the Refugee Compact – a that barriers to dependably get refugees to a of ensure and protection for the of require meaningful burden and responsibility and guarantee solutions for refugees or for their host we need to out this for what it really is – a We should be that we do not need a Compact refugees, in which refugees are simply the not the of the It is time for a reform that refugees – all refugees, – and which that a multilateral commitment to refugee rights requires not but rather of International Refugee of This is based on the to the International for the of of