James Hathaway: Plan for, rather than simply react to, refugee movements

Mitu Gulati points me to this piece by James Hathaway:
A global solution to a global refugee crisis
JAMES C. HATHAWAY 29 February 2016

His summary:

 How should we proceed?

A team of lawyers, social scientists, non-governmental activists, and governmental and intergovernmental officials, drawn from all parts of the world, worked for five years to conceive the model for a new approach to implementing the Refugee Convention. We reached consensus on a number of core principles.

1. Reform must address the circumstances of all states, not just the powerful few.

Most refugee “reform” efforts in recent years have been designed and controlled by powerful states—for example, Australia and the EU. There has been no effort to share out fairly in a binding way the much greater burdens and responsibilities of the less developed world, even at the level of financial contributions or guaranteed resettlement opportunities. This condemns poorer states and the 80% of refugees who live in them to mercurial and normally inadequate support—leading often to failure to respect refugee rights. It is also decidedly short-sighted in that the absence of meaningful protection options nearer to home is a significant driver of efforts to find extra-regional asylum, often playing into the strategies of smugglers and traffickers.

2. Plan for, rather than simply react to, refugee movements.

The international refugee system should commit itself to pre-determined burden (financial) sharing and responsibility (human) sharing quotas. Such factors as prior contributions to refugee protection, per capita GDP, and arable land provide sensible starting points for the allocation of shares of the financial and human dimensions of protection. But, as the recent abortive effort to come up with such shares ex post by the European Union makes clear, the insurance-based logic of standing allocations can only be accomplished in advance of any particular refugee movement.

3. Embrace common but differentiated state responsibility.  

There need be no necessary connection between the place where a refugee arrives and the state in which protection for duration of risk will occur, thus undercutting the logic of disguised economic migration via the refugee procedure. And rather than asking all states to take on the same protection roles, we should harness the ability and willingness of different states to assist in different ways. The core of the renewed protection regime should be common but differentiated responsibility, meaning that beyond the common duty to provide first asylum, states could assume a range of protection roles within their responsibility-sharing quota (protection for duration of risk; exceptional immediate permanent integration; residual resettlement)—though all states would be required to make contributions to both (financial) burden-sharing and (human) responsibility-sharing, with no trade-offs between the two.

4. Shift away from national, and towards international, administration of refugee protection.

We advocate a revitalized UNHCR to administer quotas, with authority to allocate funds and refugees based on respect for legal norms; and encouragement of a shift to common international refugee status determination system and group prima facie assessment to reduce processing costs, thereby freeing up funds for real and dependable support to front-line receiving countries—including start-up funds for economic development that links refugees to their host communities, and which facilitate their eventual return home. Our economists suggest that reallocation of the funds now spent on domestic asylum systems would more than suffice to fund this system. And since as described below positive refugee status recognition would have no domestic immigration consequence for the state in which status assessment occurs, this savings could be realized without engaging sovereignty concerns.

5. Protection for duration of risk, not necessarily permanent immigration.

We should be clear that this is a system for which migration is the means to protection, not an end in and of itself. Managed entry regimes should be promoted where feasible, though the right of refugees to arrive wherever they can reach without penalization for unlawful presence must be respected (thus undercutting the market for smugglers and traffickers). Some refugees—such as unaccompanied minors and victims of severe trauma—will require immediate permanent integration, though others should instead be granted rights-regarding protection for duration of risk. Creative development assistance linking refugees to host communities would increase the prospects for local integration, and many refugees will eventually feel able to return home. But for those still without access to either of these solutions at 5-7 years after arrival, residual resettlement would be guaranteed to those still at risk, enabling them to remake their lives with a guarantee of durable rights—in stark contrast to the present norm of often indefinite uncertainty.

If we are serious about avoiding continuing humanitarian tragedy—not just in Europe but throughout the world—then the present atomized and haphazard approach to refugee protection must end. The moment has come not to renegotiate the Refugee Convention, but rather at long last to operationalize that treaty in a way that works dependably, and fairly.