12 September 2013

How We Can Do Something: Sharing the Responsibility to Protect Syrian Refugees

Cross posted on the website of the ESIL Interest Group on Migration and Refugee Law

With breath bated, the world has been waiting to see what will happen next in Syria. On Tuesday 10 September 2013, President Barack Obama said he would pursue a Russian proposal which has “the potential to remove the threat of chemical weapons without the use of force”. It’s too early to tell whether this diplomatic attempt will succeed, so in the meantime, the option of military action remains on the table. Without a Security Council mandate, any form of military engagement in Syria would violate international law on the use of force. And yet, this may not stop the United States and its allies from moving forward with military intervention. It is all but clear whether intervening will improve matters on the ground. In fact, it could easily make things worse, but that doesn’t seem to matter. What matters is that “we need to do something”.

In this blog post, I argue that we can do something. The countries of the world can share the responsibility for the 2 million Syrians who have been forced to seek refuge abroad.[1] In a statement released to mark this sad milestone, United Nations High Commissioner for Refugees (UNHCR) António Guterres said Syria had become “a disgraceful humanitarian calamity with suffering and displacement unparalleled in recent history”. He added that “the only solace is the humanity shown by the neighbouring countries in welcoming and saving the lives of so many refugees”. But with an average of almost 5.000 Syrians fleeing into Lebanon, Jordan, Turkey, Iraq and Egypt every day, their ability to cope is wearing thin.[2] International support is urgently needed to help them deal with the Syrian refugee crisis.

The protective responsibility with which surrounding countries are struggling, can be shared in several ways, three of which are outlined below. One way is by creating international territories of asylum,[3] that is, territories leased by an international organisation (IO) for the purpose of offering refugee protection. IOs, in particular the UN, are already heavily involved in protection efforts for Syrian refugees. The next step is to conclude binding agreements on leasing of land with host countries. On the basis of such an agreement, an IO assumes temporary control over the land on which refugees reside. In exchange, host countries receive monetary compensation for the use of that land.[4] This constitutes a truly international solution, because responsibility for the protection of Syrian refugees is indirectly – through the IO – shared by countries beyond the region.

The establishment of international territories of asylum would be unique in the history of refugee protection; never before have international lease agreements been used for strictly humanitarian purposes.[5] However, as a new tool of protection, this solution raises a number of complex legal issues. Most fundamentally, it is doubtful whether IOs can ever be “actors of protection”,[6] even though they increasingly play a role in providing care and assistance to refugees. The reason for such skepticism harks back on the essence of refugeehood. To be a refugee means to have a broken political relationship with a state,[7] which cannot be replaced by a makeshift relationship with an IO. In other words, refugee protection could be said to involve particular functions and attributes that IOs, and other non-state actors for that matter, simply cannot provide.

In light of this initial objection, and given the fact that countries are generally reluctant to concede authority over territory, it is highly unlikely that international territories of asylum will be become a reality in the coming weeks. A responsibility sharing solution that stands a greater chance of success is the provision of temporary protection by countries bordering Syria, combined with the promise of resettlement in countries further afield. This two-step formula has been applied in the past, most notably in response to the Indochinese refugee crisis from 1979 until 1989 and the Kosovo refugee crisis in 1999. In both cases, countries of first asylum rejected a further inflow of refugees due to fears of national destabilisation. Eventually, they were persuaded into admitting refugees on a temporary basis, but only after assurances of resettlement elsewhere were given.[8]

Overall, the temporary protection and resettlement solution contributed positively to the protection of Indochinese and Kosovar refugees. However, implementation of this solution was not without controversy. In both cases, access to protection became dependent on the possibility of resettlement. It is this conditionality that was heavily criticised by human rights activists and even UNHCR staff in the field. They feared that setting sharing as a pre-condition would compromise the obligation of non-refoulement, which includes non-rejection at the border. Taking a principled stance, they argued that the obligation of non-refoulement must be “scrupulously observed” in all cases[9] and “can in no way be contingent upon the implementation of a responsibility sharing programme”.[10]

Apart from concerns relating to conditionality, there were other problems as well. For example, refugees were forcibly moved to resettlement countries, which, albeit for protection purposes, is questionable from a human rights perspective. In addition, resettlement outside of the region made return once the situation had changed considerably more difficult.[11] These problems were all associated with the physical transfer of refugees from one place to another. To prevent their recurrence in dealing with the Syrian refugee crisis, it may be advisable to push for some form of responsibility sharing that is financial only. Pursuant to a financial responsibility sharing arrangement, countries close to Syria will continue to bear the responsibility for physical protection, with other countries doing their part by providing funding for protection and relief efforts.

The strength of this solution is that it recognises that different states can contribute to refugee protection in different ways, depending on their preferences and capabilities.[12] It is also the solution that is most feasible, since it greatly resembles the way the international community is currently organising its support to states hosting Syrian refugees. However, important adjustments must be made, especially with regard to the discretionary nature of the funding arrangements. On numerous occasions, donor states have pledged to send money without making good on those promises.[13] This has to change, because only the reliable availability of fiscal aid and assistance will ensure that the refugees can continue to find the protection that they so desperately need. What is thus required to improve the current state of affairs is a binding mechanism for financial responsibility sharing.

In this blog post, I have discussed three options on the basis of which responsibility for the protection of Syrian refugees can be shared. In view of the pressure that the refugee exodus is placing on neighbouring countries, sharing is no longer a matter of ‘if’, but ‘how’. Although the answer to the ‘how’ question has shown that each of the proposals comes with its own challenges, they merit serious consideration nonetheless. After all, as long as the world remains deeply disunited over how to bring about an end to the Syrian conflict, there is no hope of eliminating the causes that force people to flee in the first place. In this tragic reality lies the “beauty” of refugee protection: it is a “palliative” response that allows the world to do what it can, at least until the bloodshed in Syria is stopped.[14]

[1] The 2 million figure represents Syrians who have registered as refugees or who are pending registration. A further 4.25 million people are displaced inside Syria, according to data from the UN’s Office for the Coordination of Humanitarian Affairs (OCHA). Taken together, these numbers – amounting to more than six million people – mean that more Syrians are now displaced than people from any other country. See ‘Number of Syrian refugees tops 2 million mark with more on the way’, UNHCR <http://www.unhcr.org/522495669.html> (3 September 2013).

[2] More than 97 per cent of Syria’s refugees are hosted by countries in the immediate surrounding region. Of those countries, Lebanon hosts the most with some 720,000, followed by Jordan with 520,000, Turkey with 464,000 and 200,000 in Iraq. Egypt is hosting an additional 111,000 Syrian refugees. See ‘UNHCR and host countries to push for greater international help on Syrian refugees’, UNHCR <http://www.unhcr.org/522756779.html> (4 September 2013).

[3] See generally on the notion of international territories of asylum, Terje Einarsen, ‘Mass Flight: The Case for International Asylum’ (1995) 7 International Journal of Refugee Law 551.

[4] Eve B. Burton, ‘Leasing Rights: A New International Instrument for Protecting Refugees and Compensating Host Countries’ (1987-1988) 19 Columbia Human Rights Law Review 307, 319.

[5] Einarsen (n 3) 565.

[6] See generally on the issue of non-state actors as actors of protection, Maria O’Sullivan, ‘Acting the Part: Can Non-State Entities Provide Protection Under International Refugee Law?’ (2012) 24(1) International Journal of Refugee Law 85.

[7] Alte Grahl-Madsen, The Status of Refugees in International Law – Volume I (AW Sijthoff-Leyden 1966) 78-79; Andrew E. Shacknove, ‘Who is a Refugee?’ (1985) 95 Ethics 274, 283.

[8] See generally on the Kosovo refugee crisis, Michael Barutciski and Astri Suhrke, ‘Lessons from the Kosovo Refugee Crisis: Innovations in Protection and Burden Sharing’ (2001) 14(2) Journal of Refugee Studies 95.

[9] UNHCR ExCom Conclusion No. 22 (XXII) ‘Protection of Asylum Seekers in Situations of Large-Scale Influx’ (1981) para. II.2.

[10] Amnesty International, ‘Former Yugoslav Republic of Macedonia: The Protection of Kosovo Albanian Refugees’ (1999) 20.

[11] Joanne Thorburn, ‘Transcending Boundaries: Temporary Protection and Burden Sharing in Europe’ (1995) 7 International Journal of Refugee Law 459, 476.

[12] James C. Hathaway, ‘Why Refugee Law Still Matters’ (2007) 8 Melbourne Journal of International Law 89, 102. See also James C. Hathaway and R. Alexander Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115, 202-207.

[13] As a result, states hosting Syrian refugees are worryingly under-supported, with receipt of only 47 per cent of the funds required to meet basic refugee needs. See UNHCR (n 1).

[14] Hathaway (n 12) 98.

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