Blog post written by RLI Senior Research Associate Jean-François Durieux who will present on the ‘Mass Displacement and Regional Protection Frameworks in Africa’ panel, and chair the panels on ‘Shared Protection: Rethinking the Role of the State of Origin in International Refugee Protection’ and ‘Flight from Armed Conflict and Other Situations of Violence’ at the upcoming RLI 2nd Annual Conference. The full conference programme is available here.
A good six months after the adoption of the New York Declaration, the agencies in charge of drafting and promoting the Global Compacts on refugees and migrants – UNHCR and IOM, respectively – seem to be struggling to define the legal nature and the scope of these instruments. This makes it difficult for scholars and technical experts – whatever their discipline may be – to offer constructive suggestions. Here, as in all high-level political initiatives on ‘global’ issues – climate change springs to mind – there exists a serious risk of conceptual dispersion: international migration being a multi-dimensional phenomenon, there is almost no limit to the number of peripheral issues and vested interests capable of jumping, so to speak, on the bandwagon.
Clarity of purpose is, therefore, a necessary prerequisite to clarity of process – which is badly lacking. Unfortunately, as I seek guidance in the Secretary-General’s report ‘In safety and dignity: addressing large movements of refugees and migrants’ (21 April 2016), in the New York Declaration and in its Annexes, I am not sure that I understand which problem(s) the Global Compacts are meant to resolve. I read that large movements ‘may be understood to reflect a number of considerations, including: the number of people arriving; the economic, social and geographical context; the capacity of a receiving State to respond; and the impact of a movement which is sudden or prolonged’ – in other words: large does not really mean large, and I am left to wonder what particular issues the sheer size of a population movement may raise.
As a matter of fact, I believe I know the answer to this question, at least as far as refugee movements are concerned. But here’s the next rub: whereas the New York documents place much emphasis on the distinction between refugees and migrants (personally, I would rather say: and other migrants), neither category is defined therein, as though there was a clear consensus on the refugee character (or lack thereof) of every ‘large movement’ of people. This is wishful thinking: in reality, a common reaction to the ‘massification’ of a cross-border flow is to deny or minimize the refugee character thereof – a phenomenon which in prior writings I have called the contamination of the qualitative by the quantitative. And, in any event, a state enjoys a fair amount of discretion in deciding that, while the people concerned may be refugees, they are not ‘its’ refugees…
Let us put ‘large’ aside, and accept a degree of confusion or overlap between the ‘migrant’ and ‘refugee’ categories. We are left with the following problem statement: ‘cross-border movements of people that are not regular, safe or orderly, and for whom shared responsibility has been lacking’. The ‘and’ notwithstanding, the reference to inadequate responsibility-sharing makes more sense in the refugee context – i.e., where the people concerned are recognized to fall under an established system of global responsibility – than in other mobility contexts that may be regulated bilaterally.
On the other hand, population movements induced by persecution, war, or other forms of violence cannot be expected to be orderly or regular from source. It can be argued that a more equitable distribution of state responsibilities is what will make the subsequent mobility of those refugees safer and more orderly – but that will come true only if regular avenues for further migration are opened. Societies currently bearing the brunt of the refugee ‘burden’ – and not only in the global South – rightly complain about the lack of predictability in the sharing, including in its ‘mobility’ modalities of evacuation and resettlement.
This is, I suppose, where the objectives of the two compacts eventually meet. Whether it is possible to conceive of a ‘global’ meeting point is another question. The realists among us would be satisfied if at least some refugee populations could, through ‘situational’ arrangements, benefit from the international community’s resolve to ‘ensure safe, orderly and regular migration involving full respect for human rights’.
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