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The Arc of Protection Chapter 3

Principles of Protection

PS Books is proud to be publishing a draft of a pathbreaking study of the international refugee crisis, along with informed commentary by a group of the leading experts in the field. This is the third chapter. Last week, we published the introduction and Chapter 1 and Chapter 2. We will publish the remaining two chapters of the series later today. The commentaries will follow. We are experimenting here, presenting a preview of a book, for comments, to which Aleinikoff and Zamore will respond in the final version of their book. For this reason, they welcome and are especially interested in responses from our readers. —Jeff Goldfarb

Our argument so far has been that the international community has a responsibility to provide international protection to persons forced to flee their homes and to do so equitably and expeditiously. As we have seen, such effective provision of international protection links norms with institutions and practices. In this Chapter, we will seek to give a robust view of the normative content of international protection. We will consider institutional arrangements in subsequent chapters.

The usual way a discussion on international protection proceeds is to focus on the rights of refugees, which derive from the Refugee Convention and other international law instruments. This is typically followed, in the academic literature, by a demonstration of how those rights are routinely violated. We agree that rights are at the core of international protection and that they are far too frequently dishonored in their breach. [1]

Here, however, we want to address the content of international protection from a starting point other than the rights of refugees. We do so for two reasons. First, refugee rights is too narrow a category because it does not include forced migrants who also have rights arising from both their humanity and their displacement — particularly IDPs who are guaranteed human rights as well as specific rights under regional arrangements (such as the African Union’s Kampala Convention) and forced migrants eligible for human rights and subsidiary protection in the EU. Second, even a robust implementation of existing refugee rights would not bring about a state of affairs adequate to the needs of displaced persons. We have underscored the importance of support to host states, both to strengthen the economies in which refugees live and as a form of equitable responsibility-sharing among states. Adequate provision of international protection will require recognition of additional rights and the crafting of new institutional and responsibility-sharing practices.

As we have argued in earlier chapters, the overall aim of international protection is to remedy the harms of forced displacement. Traditionally, international protection has embraced three core commitments: offering safe haven to forced migrants who have escaped from violence and other atrocious conditions that make their lives at home intolerable; enabling them to rebuild their lives or to provide for their welfare when they are unable to do so; and helping them exit from the category of uprooted. We will refer to these elements of protection as safetyenjoyment of asylum, and solutions. To these well-established three, we will add two more: enhancing the ability of the displaced to pursue opportunities for economic, educational and social advancement through movement; and ensuring that those displaced have a role in the crafting of international and domestic responses to their displacement. We will refer to these additional elements as mobility and voice. Together, these five commitments recognize and seek to protect refugee agency and to restore the hope and possibility of human flourishing. Starting from these commitments gives a dynamic reading to the concept of international protection, and one distinct from the view (frequently asserted) that the core concern of international protection is non-refoulement and international humanitarian assistance. To us, the success of international protection is when it puts itself out of business. In this story, rights play an essential role, but they are one of several means to a larger end.

1. Safety

Protection of forced migrants begins with assuring them safety. Safety, in turn, must include both a right to access a safe place and the right not to be returned to danger. We will call this the “principle of safety.” These straightforward and commonsensical propositions run into the sophisticated idiosyncrasies of the current international refugee regime. The 1951 Convention, as scholars regularly note, protects against return to (certain kinds of) danger — this is the principle of non-refoulement — but it includes no right to enter another country to claim asylum. This state of affairs leads to a lot of head-scratching, but there it is. At its founding, the modern system for protecting refugees was willing to challenge state sovereignty only so far. [2] The Convention, in particular, had in mind those refugees — the aforementioned “residual caseload” — already in states of asylum. Access to safety abroad was presupposed.

a. Rescue

Sophistication breeds sophistication. A (limited) right to enter, it is argued, can be inferred from the Convention’s guarantee of non-return. Such an inference proceeds as follows: the right of non-return cannot have meaningful effect if a person is not able to assert it; in a world where no habitable territory remains unclaimed by states, it is states that must provide a process for determining whether the right applies, and this implies entry to some state, at least so far as to permit the filing of an asylum claim.[3]

The line of reasoning is a persuasive work-around of the contradiction at the heart of the international system of protection. But note that it is of limited value to most fleers of necessity: it does not specify which states have a due to admit, and it requires an applicant to have a claim under the Convention’s definition of refugee, which, as we have seen, is an inadequate measure of persons who need international protection. More importantly, it gets the argument precisely backwards. Rather than inferring a right to enter from the right of non-return, the right to non-return is in fact compelled by the principle of safety. We use the term “principle” to make clear that we are not asserting there is a freestanding “right” under international law to enter another state to file a claim for asylum. Our argument, instead, is that a well-functioning system of international protection for forced migrants must start by guaranteeing safety, and to do so it must enable those in need to access a safe place.[4] The argument is therefore functional rather than strictly legal. Following rescue, other questions arise — such as what rights and opportunities should be provided to those rescued (which we address below). But it is obvious that such persons cannot be summarily prevented from fleeing danger nor returned to the very danger they have fled; either would make a mockery of the principle of safety.

To read more please click here.

T. Alexander Aleinikoff is University Professor and Director of the Zolberg Institute on Migration and Mobility at The New School.
Leah Zamore directs the humanitarian program at the Center on International Cooperation.

 


[1] In state after state, all of which are either parties to the Refugee Convention or other international human rights agreements (or both), rights are violated, under-enforced, and ignored. Displaced persons are refouled, pushed back, and otherwise denied access to territories and to asylum procedures. They are denied the right to work, to freedom of movement; restricted to camps, placed in detention, and denied due process. Children are excluded from education, and families have no access to social programs. So a program of and for rights must resolutely pursue avenues of enforcement of rights if the lives of displaced persons are to be materially improved.

[2] Similarly, the Universal Declaration of Human Rights, adopted just three years before the Refugee Convention, guarantees a right to seek and enjoy asylum, but not a right to enter a state to claim asylum or a right to be granted asylum. Article 14(1), available here.

[3] James C. Hathaway, The Rights of Refugees Under International Law, (Cambridge: Cambridge University Press, 2005), p. 315; Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, (Oxford: Oxford University Press, 2007), p. 207.

[4] See Alexander Betts and Paul Collier,Refuge: Rethinking Refugee Policy in a Changing World, (Oxford: Oxford University Press, 2017), p. 196.

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