The Arc of Protection Chapter 5
Conclusion -- Achieving the Vision
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 fifth chapter. We previously published introduction, Chapter 1, Chapter 2, Chapter 3, and Chapter 4. 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
We have, in essence, defined four arcs along which international protection of refugees has progressed. First, the classes of protected persons have expanded dramatically. The geographical and temporal limits of the 1951 Convention have been removed, making the definition of refugee global. Regional instruments and international practice now affirm that persons fleeing across borders due to conflict and violence will generally be considered refugees.  We have come close, as a matter of practice, to ensuring that all necessary fleers receive some form of international protection.
Second, protection activities of UNHCR, other international organizations, and NGOs have moved considerably beyond those initially anticipated by the founders of the international refugee regime. In addition to the granting of identity and travel documents and advocacy for refugee rights, international protection today includes a wide range of programs for refugees in vulnerable situations — women, children, LGBTI people. Hundreds of millions of dollars are spent each year by the international community on refugee education, health, and livelihoods projects.
Third, refugee rights have expanded — at least as a formal matter — beyond those enshrined in the Convention to include norms from later adopted human rights instruments. The Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and the ILO convention as well as the Covenants on economic, social, cultural and civil and political rights are particularly significant. Most recently, protections in international maritime law have come to the fore.
Fourth, the category of responders has grown. Development agencies now see displacement as an important area for their intervention. And private sector actors — seeing both moral obligations and opportunities for profit — have entered the refugee protection space.
Thus over the past 70 years, we have witnessed substantial movement forward along the arc of protection. Today, more displaced persons are being assisted by more actors in more ways than at any time in history. It is thus an extreme irony that the system is largely in disarray, betraying its founding principles and enduring goals. A regime designed to put people back on their feet keeps them on their knees. A system of protection intended to guarantee the return to normal life has produced a surreal existence for the vast majority of displaced persons, condemned to life in extreme poverty and perpetual limbo. The country of first asylum — the place of rescue — has become, for most refugees, a place of confinement where they are both locked in and locked out: unable to return safely home and forbidden to move elsewhere, they are also denied entry into economic opportunities and social programs in hosting communities. Humanitarian programs have supplanted rights-based approaches, producing deprivation (and debt) instead of dignity.  Development programs have also retreated from their welfarist origins, often prioritizing global markets instead of the global poor. 
Plainly, dramatic measures are needed to repair this broken system. But the programs for reform proposed by those with most of the world’s resources — the global North — are likely to reinforce rather than remedy the fundamental failings of the current state of affairs. Let us leave to one side proposals that would move the system backwards on the arc of protection — that would cut back on the definition of refugee, adopt encampment policies, restrict established refugee rights, or condition development aid on border closures or interceptions.  We will examine instead what we will label the New Liberal Consensus on reform of the refugee regime.
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 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees , December 2011, HCR/1P/4/ENG/REV. 3, available here.
UNHCR, Guidelines on International Protection No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence Under Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees and the Regional Refugee Definitions , December 2, 2016, HCR/GIP/16/12, available here.
 See e.g., Kevin Sieff, “‘What Other Choice Do I Have?’ How Debt-Ridden Refugees are being Forced to Return to a War Zone,” Washington Post, December 15, 2017,, (explaining the link between the volatility of aid and the surge in debt among Somali refugees in Kenya). See also, a December 2017 survey finding that nearly 90 percent of Syrian refugee households in Lebanon — a major focus-country of international interventions—are indebted, and almost 80 percent are living below the poverty line. (The survey, conducted by WFP, UNHCR, and UNICEF, is available here.)
 Leah Zamore, “Refugees, Development, Debt, Austerity: A Selected History,” Journal of Migration and Human Security, no. 6, (2018): pp. 26-60.
 See e.g., Denmark’s Aliens (Consolidation) Act, No. 863, June 25, 2013; Refugee Council of Australia, “Australia’s Detention Policies,” May 17, 2016; Bill Frelick, “U.S. Detention of Asylum Seekers and Human Rights,” Migration Policy Institute, March 1, 2005; UNHCR, UNHCR Observations on Amendments to the Danish Aliens Act as Set Out in Lovforslag nr. L 62, January 2016.