Blog post by Jeff Crisp and Nicholas Maple*
What is the refugee regime?
One of the most common concepts in the field of refugee studies is the international refugee protection regime. Indeed, it is such a familiar notion that those of us who write about refugees often use it without really thinking about what the concept means and whether it has any real value. In this article, we look more closely at this notion and suggest that in several respects, it has a diminishing relevance.
The regime is not a legal concept and nor does it have an agreed definition. Following the work of Loescher, Milner and Betts, the regime can be said to have four principal components. First, international refugee, humanitarian and human rights law, most notably the 1951 UN Refugee Convention and regional instruments such as the 1969 OAU Convention for Africa.
Second, an institution, namely UNHCR, which has a formal and internationally recognised mandate to find protection and solutions for the world’s refugees. The institutional umbrella term ‘UNHCR’, it should be noted, refers not only to the organisation working out of Geneva, but also to the member states of the agency’s Executive Committee, and to the many governmental, non-governmental and UN agencies with which the organisation works on the ground.
A third component of the regime is the commonly recognised principles and norms that govern the way in which refugees are to be treated by states. These include, for example, the right to leave one’s own country and to seek asylum elsewhere; the right of refugees not to be returned to a country where their life or liberty would be at risk; and the principle that when refugees return to their country of origin, they should do so in a manner that is strictly safe and voluntary.
Fourth and finally, the notion of a regime implies that its members are expected to respect these norms and principles and are held accountable for their actions in relation to refugee protection.
In short, therefore, the international refugee protection regime can be defined as a network of legal instruments, institutions, norms, principles, rules and accountability mechanisms, intended to ensure that refugees are effectively protected and are able to find a lasting solution to their plight.
In this article, we argue that the time has come to adopt a more critical approach to the refugee regime concept than has traditionally been the case. More specifically, there is a need to acknowledge a number of historical and contemporary variables that are limiting, challenging and undermining the very notion of an international refugee protection regime. The following sections identify four of those variables.
A large and growing proportion of the world’s refugees are to be found in countries which are not signatories to the 1951 UN Refugee Convention or which limit its application: Bangladesh, Jordan, Lebanon and Turkey, to give four prominent examples.
This evidently does not prevent such countries from admitting refugees to their territory and providing them with various forms of protection. India, another non-signatory state, has often argued that it treats refugees in a better way than many of those who have ratified the Convention. Indeed, it has even been suggested that India has “reshaped international refugee law principles in accordance with subcontinental experiences of forced migration.”
Nor does being a non-signatory to the Convention mean that such states cannot become members of UNHCR’s Executive Committee and play an active role in its deliberations. It does mean, however, that the formal refugee regime is increasingly limited in terms of its geographical and numerical coverage.
Respect for regime norms
Second, even amongst signatory states, respect for the norms on which the refugee regime is based appear to be in serious decline. As has been widely documented, increased border closures, refugee pushbacks, involuntary returns, attacks on refugee settlements, restrictions on movement and access to the labour market are currently being seen in many parts of the world.
In a recent interview, UNHCR’s Assistant High Commissioner for Protection acknowledged that protection standards have deteriorated significantly in the three years since the Global Compact on Refugees was established – partly, but not wholly, as a result of the Covid-19 pandemic. With the full economic cost of the global pandemic not yet known, a post-Covid-19 world is only likely to increase strains on governments and local communities further, with ‘outsiders’ such as refugees experiencing mounting levels of precarity.
Refugees and the regime
Third, there is evidence to suggest that refugees themselves have lost confidence in the regime that is supposed to be protecting and finding solutions for them. As observed in regions such as the Gulf States and southern Africa, more and more people who meet the criteria for refugee status simply prefer not to make contact with UNHCR and its partners.
This attitude is based on a number of related factors: a general lack of trust in the regime and its key actors; a sense that the regime has nothing tangible to offer them; and a belief that by registering as refugees they would be limited in their mobility and hence their capacity to find solutions for themselves. In many developing countries, accessing the refugee regime (and, by extension, international protection) means giving up the right to freedom of movement, and being confined to a refugee camp or settlement.
The role of UNHCR
Fourth, UNHCR’s role at the centre of the international refugee regime has been compromised in recent years. It was intimidated by the Trump administration and has formed an uncomfortably close partnership with the EU in relation to refugee movements in the Mediterranean region. Recent reports concerning the agency’s collection and use of the personal data of Rohingya refugees in Bangladesh have also damaged the agency’s standing. This may well become a more general issue in the years to come, given the strong emphasis on data collection in the Global Compact on Refugees.
UNHCR now appears to spend little energy on encouraging further accessions to the 1951 Convention, the legal centrepiece of the refugee regime, and is at the same time busily rebranding itself as an agency that supports all of the world’s 80 million forcibly displaced people, rather than the 20 million refugees that comes under its original mandate. In an attempt to mobilise public support, UNHCR has invested heavily in corporate marketing and celebrity endorsement, sometimes giving the unfortunate impression that brand promotion has become a key institutional objective.
We should not be too critical. UNHCR is, of course, limited in what it can say and do, both in relation to its key donors and in the context of refugee-hosting countries which are pursuing policies that are not amenable to the protection of refugees. The organisation has only a modest amount of diplomatic or legal clout, and is obliged to rely on moral authority, persuasion and inducement in its dealings with sovereign states. A good deal of its work has to be done behind the scenes, using a ‘softly softly’ approach.
There is some evidence to suggest that UNHCR might be reconsidering this strategy. In recent weeks, the organisation has made some very forthright public statements in relation to UK, Danish, Australian and US asylum policies, and, more generally, on the issue of externalization.
This is a very encouraging development. Yet, at the same time, we appear to have reached a stage at which a growing number of states have realised that the accountability mechanisms of the refugee regime are very weak, and that the rules on which it is based can be broken with impunity. Indeed, if implemented as intended, the UK and Danish proposals could represent an existential threat not only to refugee protection in those countries but to the regime as a whole.
These developments are reflective of a broader trend within the international community, namely the growing influence of states such as China, India, Russia and Turkey, which espouse a nationalistic ideology and which have a disdain for international law and cooperation. As UN Secretary-General (and former UNHCR chief) Antonio Guterres has lamented, global governance has been weakened in recent years, undermining the regimes that have been established to regulate state behaviour in relation to a range of transnational issues.
At the 5th Annual Refugee Law Initiative Conference, ‘Ageing Gracefully? The 1951 Refugee Convention at 70’ held in London recently, both Professor B.S. Chimni and Professor James C. Hathaway suggested in their keynote presentations that in view of its dependence on both host and donor countries, UNHCR was unable to monitor and report on state compliance with the principles of refugee protection in a sufficiently transparent manner. Was it not time, they suggested, for that responsibility to be transferred to another and more independent body?
A number of questions arise in relation to this intriguing (although not entirely novel) proposal. First, would states support the establishment of such a body, given their evidence preference for a soft regime which (like the widely-endorsed Global Compact on Refugees) is limited in its ability to directly influence their behavior?
Second, what form would such a body take, and where would it be institutionally located? What exactly would its mandate, working methods and outputs be, and, most significantly, what real difference would it make to refugee protection and solutions on the ground?
Third, while examining these questions in more detail, what other and simultaneous steps might be taken to strengthen the international refugee protection regime? As one of the authors of this article has suggested elsewhere, a global strategy is now needed to mobilise political will on behalf of refugees, one that builds upon the humanitarian instincts and interests of political leaders, the obligations that states have freely assumed in relation to refugees, the incentives that can be used to encourage compliance with refugee protection principles and the pressure that can be placed on governments by other stakeholders, including the public, civil society, NGOs, the judiciary, academia, and, of course, refugees themselves.
Indeed, one of the most positive developments in the three years since the Global Compact was established has been the growing voice and visibility of refugees and refugee-led organisations, actors that can bring a unique and compelling perspective to the asylum discourse. Looking to the future, there must be no discussion about them, without them.
* Jeff Crisp is a research associate at the Refugee Studies Centre, University of Oxford, and an associate fellow at Chatham House. Nicholas Maple is a Post-Doctoral Research Fellow at the African Centre for Migration & Society (ACMS), University of the Witwatersrand and works on the PROTECT, The Right to International Protection project. Thank you to Prof. David Cantor for comments on an earlier draft. The views expressed in the essay, and any errors that it contains, remain those of the authors alone.
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