Current challenges to the international protection of refugees and other migrants

To be able to assess the developments resulting from the NY Declaration, it is necessary to begin by describing the current scenario of challenges in global migration to consider if the document has tackled and is able to deal with the real landscape of obstacles faced by refugees and other migrants. Nowadays, the governance of migration faces several challenges from a normative standpoint, among which the following five need to be highlighted.

The first challenge relates to the existing (or non-existing) regimes of protection of migrants. To date, of all migrants only refugees can count on an international regime of protection. ^{3 , 4} IDPs have international norms on their behalf but those are either principles, ⁵ not hard international commitments, or regional frameworks with limited scope. ⁶ Migrant workers rely on an international treaty, ⁷ but one that is poorly ratified. ⁸ In this sense, being a refugee may be the only way to ascertain protection, if you are a migrant. This is complicated, given that the definition of refugee enshrined in the 1951 Convention Relating to the Status of Refugees (1951 Refugee Convention) is both limiting and deemed outdated. In regard to the former, only a person with a well-founded fear of being persecuted as a result of his or her nationality, race, religion, political opinion, or membership of a social group that is outside his or her country of origin and both needs and deserves international protection (i.e., is subjected to neither cessation nor exclusion clauses) ⁹ can be recognized as a refugee. In relation to the latter, the 1951 Refugee Convention was influenced by the post-Second World War historical context (Koser, 2015). As a result, the definition seems to be incapable of dealing with other current causes of forced migration, such as environmental displacement, ¹⁰ other humanitarian causes, or voluntary migration.

Legally speaking, the universal definition of refugee features two main shortcomings that hinder the protection of those forced migrants. First, it lacks a better integration with the three dimensions of human rights (Jubilut & Madureira, 2014), considering only violations of civil and political rights for the purpose of refugee status determination, which makes the protection of, for instance, economic migrants and environmental displaced persons difficult. Second, the above-mentioned five grounds of persecution listed by the 1951 Refugee Convention restrict its scope (ibid). As only individuals who have a well-founded fear of persecution on account of race, nationality, religion, political opinion, and membership of a particular social group can be recognized as refugees, persons who, for instance, flee settings of gross and generalized violations of human rights or civil unrest often need to be protected either by complementary forms of protection ¹¹ or regional responses, such as those encountered in Africa ¹² and Latin America. ¹³

A second normative challenge in the governance of migration, related to the first one, exists in the labeling of migrants. As only refugees are legally entitled to protection, labeling migrants to separate them from refugees has become a common practice. If, on the one hand, this practice can assist in determining specific causes of displacement and needs of protection, on the other hand, it can also undermine even refugees’ access to international protection. The purpose of labeling migrants has changed in recent decades (Zetter, 2007). If, in the late 1980s, non-governmental organizations (NGOs) were labeling refugees for humanitarian purposes, states in the global north are currently responsible for instrumentalizing the label “refugee” to manage new globalized flows (ibid). By creating labels such as “illegal migrants,” “economic refugees,” “temporary protection” and so on, states obscure the label “refugee” rather than clarify it (ibid, pp. 188–189). In doing so, they create a scenario in which claiming asylum becomes a challenge even for those who fall under the 1951 Refugee Convention definition (ibid). Moreover, in a scenario involving mixed migration flows and in which being considered a refugee may be, as aforementioned, the only avenue for protection, cheapening legal classifications might overburden the refugees’ regime and “underplay the status of ‘refugees’ in international law” (Gilbert, 2016) or “minimize the refugee character” (Durieux, 2017) (thus, jeopardizing refugees’ protection) and, at the same time, reinforce the continuous lack of protection for other migrants (Ceriani, 2016), in a lose–lose situation. ¹⁴ Mixing refugees and other migrants in the governance of migration can suit states’ agendas (ibid) and reinforce the need for global governance of all aspects of migration, but the challenges in doing so need to be dealt with and particularities respected so as to avoid negative consequences in the protection of human beings in situations of displacement.

A third relevant normative challenge is the existence of obstacles to migrants in accessing international protection. States are closing their borders, restricting access to refuge protection, and criminalizing both the act of claiming asylum and the act of migrating. They are also in some cases violating their obligations under international law – both in terms of international refugee law (with the norm of non-refoulement ¹⁵ ) and international human rights law. ¹⁶ An outcome of this scenario is the current lack of secure channels for refugees and other migrants to access safe territories and, once inside them, to access protection in safe places. This, in turn, fuels the market for smuggling migrants ¹⁷ and makes refugees and other migrants risk their lives on dangerous routes and pushes persons into hazardous situations. ¹⁸

A fourth challenge in the governance of migration from a legal standpoint also refers to international human rights law and relates to securing specific protection in relation to specific vulnerabilities that may exist among migrants. International migrants may be seen as vulnerable in light of their lack of international protection and the constant violations of their (human) rights. Also, migration in itself can exacerbate this situation: “Migration in the context of globalization brings opportunities but also important challenges of vulnerability and discrimination” (Office of the High Commissioner for Human Rights (OHCHR), 2011, p. 8). Moreover, in some cases vulnerabilities can be present in more than one way. The elderly, women, persons with disabilities, LGBTI persons, persons with health (physical or mental) issues, and children are, for example, more vulnerable in the context of migration and this needs to be taken into consideration in the creation of norms to protect them. ¹⁹

A fifth normative challenge in the governance of migration relates to finding durable solutions for migrants and refugees (Madureira & Jubilut, 2016). This challenge encompasses at least three topics: (1) international cooperation, (2) the securitization of migration, and (3) finding durable solutions. In terms of international cooperation, one sees that there is a crisis in this regard both in relation to migration and within the refugee regime. ²⁰ According to Türk and Garlick (2016):

There is a pressing need in today’s context to reinforce international cooperation in order for protection, assistance, and solutions, in ways that reflect States’ commitments to the principles of solidarity and responsibility-sharing. Predictability and equity are also intrinsic features of any functioning international cooperative framework….

(pp. 657–658)

Also, there is an imperative need to focus on the “centrality of [the] 1951 Geneva Convention and its 1957 Protocol,” on the 2030 sustainable agenda paradigm and, most importantly, migration governance must be built on the idea of a global partnership and shared responsibility (EEAS, 2016a). However, this does not seem to be the case, given that, as mentioned, the only international treaty on migrants is poorly ratified; also, responsibility for refugee protection is very poorly balanced due to the fact that 85 percent of refugees are being hosted in developing countries (UNHCR, 2018) and “[o]ver four out of every five refugees [are] located in a neighbouring country to the one from which they fled” (ibid). This highlights the fact that currently neither burden-sharing nor responsibility-sharing mechanisms are being adequately implemented. In terms of the securitization of migration, countries have been adopting restrictive measures and criminalizing actions against migrants, as mentioned earlier. Moreover, following 9/11 there has been a notable increase in the relating of themes such as terrorism, international security, and refugees (Gibney, 2002, p. 40). Additionally, countries often ignore “the reality of push and pull factors” and end up using repressive policies, notably in terms of the tightening of border controls and of fighting undocumented frontier crossing by using detention and extraterritorial border control (Crépeau, 2017b).

Lastly, in terms of access to (human) rights and effective protection after migration, translated in durable solutions, there are complex challenges. Integration of migrants remains a key topic and a multifaceted task. In particular for refugees there is a paradox: although they are the single group of migrants with a specific protection regime, data points out that this advantage is not translated into durable solutions even for them. By the end of 2016, approximately two-thirds of all refugees (i.e., 11.6 million people) were in protracted situations (UNHCR, 2017, p. 22); 4.1 million refugees had been in these situations for more than 20 years (ibid), thus suffering human rights abuses (Bakewell, 2014, p. 136), with no prospect of an end to their refugee status. Moreover, many refugees still cannot benefit from any of the three existing durable solutions used by UNHCR (integration, resettlement, or voluntary repatriation). All these normative challenges in the governance of migration are intertwined and need to be addressed in order for refugees and other migrants to actually have international protection. Thus, it is relevant to describe what the NY Declaration of the UN Summit put forward in this regard.

Background, legal perspective, and legal structure of the 2016 UN Summit and the NY Declaration

Efforts have been made in recent years in respect of improving the international governance of migration (OHCHR, 2011). In 2005, Kofi Annan, then UN Secretary-General, was unable to bring states together in an international conference to discuss the issue of migration (Guild & Grant, 2017). Thus, his solution was to invite a Global Commission on International Migration outside the UN (ibid). In 2006, the UN’s General Assembly held its first High-Level Panel Meeting on Migration and, as a result, in 2007 an inter-governmental Global Forum on Migration and Development ²¹ was established outside the UN, and the Global Migration Group was developed to gather together migration-related UN entities to exchange information and knowledge on the matter (ibid). Following these efforts, Annan’s successor, Ban Ki-moon, continued to place the challenges of the protection of refugees and other migrants on the international agenda. In 2013, the UN convened the High-Level Dialogue on Migration and Development, which resulted in a declaration on the part of the General Assembly ²² (Martin, 2015).

In April 2016, Ban Ki-moon presented his report – “In safety and dignity: Addressing large movements of refugees and migrants” ²³ – in which, and among several relevant points, he highlighted the necessity of creating international plans of action based both on burden-sharing and on the dignity of refugees and other migrants (United Nations General Assembly, 2016a). For him, “if one lesson can be drawn from the past few years, it is that individual countries cannot solve these issues on their own. International cooperation and action to address large movements of refugees and other migrants must be strengthened” (p. 2). He stated that, even though the international refugee and other migrant crisis is serious, solutions can be found once Member States “act together and share responsibility more equitably” (p. 2) and that the consequences of inaction can be a cause of “greater loss of life and heightened tensions among Member States and within communities” (p. 3).

The report stressed that, although humanitarian actions are needed, they are “not a viable long-term response to large movements of people” (p. 10), and that efforts are “imperative in order to include both refugees and migrants who stay in national and local development plans to ensure their livelihood opportunities while strengthening the resilience of and development opportunities for host communities” (p. 10). Following this report, in September of the same year state delegates gathered in New York to attend the UN summit to address the refugee and migrant issue, on which occasion the NY Declaration ²⁴ was adopted.

Like the Secretary-General’s report, the NY Declaration is an instrument of soft law, but one that has been adopted by the affirmative votes of states displaying the agreements that they accepted on the topic of protecting refugees and other migrants. The NY Declaration was adopted by the 193 states that are members of the UN (UNHCR, 2016c, p. 1), an impressive feat as the “global governance of international migration has been much more controversial than has been the case regarding most other transnational issues” (Martin, 2015, p. 64). This document will be guiding the global initiative on the topic of migration governance. In general, the document focuses on giving a global meaning to the phenomenon of large movements of refugees and other migrants, and tries to create a uniform and global response to the situation of both (even though the causes, labels, and normative architecture for refugees and other migrants are distinct). In paragraph 6, the NY Declaration explains that the definition of large movements takes into account “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 that is sudden or prolonged” (United Nations General Assembly, 2016b, p. 2, para. 6). The NY Declaration is divided into four sections and has two annexes. In its introduction, the text highlights that, to protect persons amidst large movements, which “may involve mixed flows of people, whether refugees or migrants, who move for different reasons but who may use similar routes” (p. 2, para. 6), it is necessary to fully face it as a “global phenomena that call for global approaches and global solutions” (p. 2, para. 7).

In addition, it recalls existing general documents that should guide the debate on the topic, such as the 2030 Agenda for Sustainable Development (pp. 1–4, paras. 4, 16, 17), the Charter of the United Nations, the Universal Declaration of Human Rights, and the core of international human rights treaties (p. 2, para. 7). It also evokes specific frameworks such as the Sendai Framework for Disaster Risk Reduction 2015–2030, the Paris Agreement on Climate Change, the Addis Ababa Action Agenda of the Third International Conference on Financing for Development (p. 4, para. 19), and the Brazil Declaration and Plan of Action (p. 2, para. 7). The NY Declaration stresses the commitment to international law and highlights that agreed-upon commitments are taking “into account different national realities, capacities and levels of development and respecting national policies and priorities” (p. 5). The NY Declaration brings three types of commitment: (1) commitments to be applied to both refugees and migrants, (2) commitments towards migrants, and (3) commitments towards refugees.

The commitments of the NY Declaration

The NY Declaration in the face of the normative challenges

The NY Declaration is undoubtedly a positive step in the international protection of refugees and other migrants given that it is the first comprehensive document on the topic and that it sets forward a pathway for the adoption of legally binding documents in 2018. Furthermore, the NY Declaration clearly highlights important issues in the governance of migration and the protection of refugees and other migrants, such as emphasizing the already existing human rights regime and strengthening the need for states to ratify all related treaties.

In terms of the normative challenges presented above, the NY Declaration can be subject to mixed reviews or give “reasons for both disappointment and hope” (Papademetriou & Fratzke, 2016). On the one hand, the NY Declaration (i) explicitly mentions the need to consider the specific protection of vulnerable groups; (ii) establishes that refugees and other migrants “have the same universal rights and fundamental freedoms” (United Nations General Assembly, 2016b, p. 2), thus aiding in mitigating the protection concerns associated with “labeling migrants”; (iii) alludes to the need for protection of migrants who lack an international regime of protection (such as environmentally displaced persons) and the need to strengthen the existing structures of protection; and (iv) recalls the need to re-examine the implementation of durable solutions. On the other hand, the proposed commitments of the document are not fully attached to any practical proposals for solutions to “people-centered” policies and regimes in situations of displacement, leaving the NY Declaration with a lack of implementation tools ²⁸ in several areas and a feeling that the document’s rhetoric is far from the migrants’ reality (Howden, 2016).

Furthermore, and creating another set of implementation challenges, is the fact that even though the NY Declaration opts for combining the governance of refugees and other migrants in one document, albeit separating them once deemed needed, it does not define any of the categories that might impose difficulties in enhancing protection for both groups in a scenario of mixed migration flows. This search for “a common reaction to the ‘massification’ of a cross-border flow” might lead to “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” (Durieux, 2017).

In addition to these issues relating to normative challenges, it is relevant to point out that, as the NY Declaration sets the tone for the Global Compacts, at least four trends might be of concern. All of these seem to stem from the deeply-rooted migration myth of opposing interests of the state and the needs of human beings, when, in fact, migration is a phenomenon that has individuals as its subjects and constituents (Jubilut & Lopes, 2017) and also benefits states (ibid, p. 53). It is true that there has been recognition of such a view, for instance the High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the European Commission, Federica Mogherini, affirmed that solutions for migration should be centered on human beings and highlighted migration’s relevance to host societies and that Europeans “should understand that we need migration for our economies and for our welfare systems, with the current demographic trend we have to be sustainable.” ²⁹ However, it appears that such points of view are not predominant within the NY Declaration even though they could guide a new (European and global) approach to migration and be present in the Global Compacts and that an adversarial position of states versus human beings is still behind migration governance leading to the four trends of concern in the NY Declaration.

The first trend relates to the rhetoric used by the NY Declaration, as it seems to paint a scenario that is not true to reality and at times is too idealistic. Recently, the world has seen severe violations of the human rights of refugees and other migrants, especially after 2015 following the “massive” arrivals in Europe, which were highlighted by the death of thousands of migrants in the Mediterranean Sea and the inhumane border control used by some countries in the form of pushbacks, detentions and relocations. These situations are not, however, expressly addressed by the NY Declaration, albeit that the emphasis of the document is on the need to “save lives” or to address the “moral and humanitarian” challenges in the governance of migration. ³⁰

Moreover, even though the NY Declaration seems to bring elements of “people-centered” guidelines to responses to migration, most proposals seem to be focused on states’ concerns rather than on seeing the human side of migration. Examples in this regard are noted in paragraphs 24 and 33 of the NY Declaration (as described above), which respectively allow for a considerable degree of discretion on the issues of border control and detention, thus favoring a state-centric perspective rather than a human rights approach. In the sense of how much the actual global regime for the protection of migrants and refugees is contaminated by an evasive and reluctant state-view approach, “it is ironic that 50 years ago nations were able to see the broader picture, while some today seem unable or unwilling to think and act internationally in the face of challenge that requires international and cooperative responses” (Goodwin-Gill, 2017). Another trend of concern is that, as in many international documents, the NY Declaration seems to bring more promises and ideas than actual means to implement its principles and guidelines, which seem extremely relevant in the complex scenario of migration. The lack of implementation mechanisms as well as of binding international norms and obligations regarding the governance of migration is not only a current problem but also a concern for any future endeavors in this area.

Lastly, it seems that the NY Declaration prefers to emphasize the convincing of states that it is good for them to receive migrants, rather than to make a stronger case for the respect of human rights in migration and in migration governance. The NY Declaration highlights, for example, that receiving migrants would be a good way to implement the 2030 Agenda (United Nations General Assembly, 2016b, p. 9, para. 46) and tries to demonstrate how migration can be positive for the countries of reception (ibid). It seems, then, that the NY Declaration could have done more to dilute the opposition between states’ interests and human beings’ needs when addressing migration. This shortcoming should be avoided in the Global Compacts of 2018.

Conclusion

The governance of migration is currently a significant global challenge and the lack of strong normative structures makes it even more difficult. In trying to advance in creating ways to address this issue, the UN held the 2016 Summit and adopted the New York Declaration on Refugees and Migrants. The document is historical in its efforts to address large movements of persons and to pave the way for two Global Compacts – one on refugees and another on migrants in general. It has shortcomings, mainly in relation to its success in dealing with the perceived opposition between the interests of states and the needs of human beings to migrate, which ought to be corrected following the adoption of the Global Compacts so that refugees and other migrants will have actual regimes of protection that are respected and implemented by states. However, the NY Declaration does make advances in terms of stating long fought after ideas in adding a human rights or “people-centered” perspective to migration. This is to be commended, as human beings are not only the subjects and regulators of migration but also the ones who actually create the phenomenon (Jubilut & Lopes, 2017).