The aim of this book is not to generate a universal blueprint for responsibility-sharing. The United Nations has already generated its Agenda for Protection,203 and it may be that the kind of collectivized responsibility-sharing scheme that Hathaway and Neve have proposed is simply too ambitious.204As suggested in Chapter 1, it may be worthwhile experimenting not with massive schemes that try to deal with risk by drawing in as many partners as possible, but with minilateral arrange- ments that trial a number of different mechanisms that are likely to assist with equitable sharing and enhancement of refugee protection and solutions.
The experts who participated in the Amman Meeting on International Cooperation to Share Burdens and Responsibilities in 2011 suggested that a practical next step in the development of international cooperation could be to establish a ‘common framework on international cooperation
202 ‘Colombia hizo aportes a Ecuador para sus refugiados, pero se requiere de más, según Gobierno’ Ecuador Inmediato (Quito), 1 March 2013 <http://
www.ecuadorinmediato.com/index.php?module=Noticias&func=news_user_view
&id=192401&umt=colombia_hizo_aportes_a_ecuador_para_refugiados_pero_se _requiere_mas_segun_gobierno>.
203 United Nations High Commissioner for Refugees, Agenda for Protection, above n 6, 6–7.
204 See Jenny Bedlington, ‘Creating Shared Solutions to Refugee Protection’
(2004) 12(1)Journal of the International Institute.
to share burdens and responsibilities’.205They proposed that this frame- work could comprise a set of understandings to support international cooperation in refugee protection, as well as an operational toolbox providing practical, historical examples of international cooperation and sample agreements detailing how responsibility could be shared in particular scenarios, such as humanitarian evacuations, distress at sea situations and temporary protection situations.206 Perhaps the best path would be to encourage states to experiment with a few sensible, protection-oriented options. It may be just as wise to give governments choices as it is to empower refugees to make choices.
Regarding the bases for sharing responsibility, culpability is imprac- tical in most situations and, although considerable cleverness is apparent in market-driven approaches to refugee protection, it is our view that responsibility for hosting refugees should rest not on economic efficiency alone, but on states’ absorptive capacity and, critically, capacity to protect refugees. On the other hand, responsibility for financing protection should rest on a state’s capacity to pay. This method of distributing responsibility requires the developed world to do more with respect to both the hosting of refugees and the funding of protection of refugees elsewhere. As a starting point, those states presently engaged in resettle- ment could aim at ensuring resettlement for all of the critical cases identified by UNHCR each year.
Garnering the political will to implement change is an enormous challenge, given the ability of states to free-ride and engage in unilateral strategies to avoid responsibility for refugees. Betts has argued that international cooperation in the refugee regime has historically occurred among states when refugee protection issues have been linked to other issues, such as development, security, peace-building and trade.207 According to Betts, countries are unlikely to cooperate with one another on refugee issues for purely altruistic reasons, but are more likely to cooperate in contributing to refugee protection if their cooperation can be linked to benefits in other areas.208
For developing states, linking refugee protection to national develop- ment as targeted development assistance perhaps stands as an example of issue-linkage in the refugee protection context that has some traction. For
205 Amman Summary Conclusions on International Cooperation, above n 5, 4.
206 Ibid 4–5.
207 Alexander Betts, ‘North-South Cooperation in the Refugee Regime: the Role of Linkages’ (2008) 14Global Governance157, 158.
208 Ibid 174–5.
developed states, the difficulties of deterrence, such as expense, harm to refugees and potentially counterproductive effects on such matters as regional stability, may at least serve to frame refugee protection in a way that encourages efforts to improve refugee protection in countries of first asylum and create more pathways for lawful movement, whether through resettlement or labour migration.209As demonstrated by the failure of the UNHCR’s initiative, Convention Plus, between 2002 and 2005, this approach has not yet proven successful, and it remains to be seen what impact the Syrian refugee crisis will have.
Finding the right mix or balance among the options for sharing people and financial resources is also difficult. We are attracted to creative ideas that seek to maximize the appreciation that there are benefits, including economic benefits, flowing from refugee protection. The tried and true mechanism of targeted development assistance, which reframes refugees as agents of development in impoverished countries and thus encourages recognition of refugees as something other than a burden, should be deployed regularly. Measures such as strategic resettlement, particularly matching resettlement places with local integration places, are also worth experimenting with. Unlike the trade of quotas in a refugee market, strategic resettlement can, if framed in the right way, enable refugees to be viewed as valuable and valued people.
209 Ibid; Alexander Betts, ‘International Cooperation in the Global Refugee Regime’ (Working Paper 2008/44, Global Economic Governance Programme, November 2008) 18–20.
Past and present regional arrangements for refugees
Since the development of the modern international refugee regime, states have on several occasions developed multilateral arrangements to address refugee situations in differing regional contexts. Between 1975 and 1996, states developed and implemented the Comprehensive Plan of Action for Indochinese Refugees (CPA) to address the forced displacement of persons following the end of the war in Vietnam. In 1981 and 1984, African states met with Western countries at the First and Second International Conferences on Assistance to Refugees in Africa (ICARA I and II) to develop a multilateral approach to Africa’s protracted refugee situations. Between 1989 and 1994, Central American states participated in a regional arrangement – the International Conference on Central American Refugees (CIREFCA) – for resolving refugee issues in connec- tion with the Esquipulas II peace plan in Central America. There are also some extant regional arrangements for protection of refugees which include elements of responsibility-sharing. In Europe, EU member states have developed the Common European Asylum System (CEAS) to regulate asylum policy in the EU. Twenty states in Latin America adopted the Mexico Declaration and Plan of Action (MPA) in a spirit of regional solidarity in 2004, in an attempt to improve the protection of refugees. It has been succeeded by the 2014 Brazil Declaration and Plan of Action.
Unlike past regional arrangements, the modern arrangements examined in this book are designed to manage ongoing processes, and they have no planned completion dates. They are neither pledging conferences like ICARA I, nor comprehensive plans of actions like the CPA or CIREFCA,
which were designed to bring particular refugee crises to an end. The modern arrangements may reflect states’ recognition of the unfortunate fact that refugee flows are continuous phenomena. To some extent, then, these arrangements reinforce the partial universalization of international refugee law accomplished by the 1967 Protocol’s removal of temporal and geographical restrictions on the definition of a refugee. On the other hand, underlying the acceptance of refugee flows as ongoing may be a pragmatic and somewhat less altruistic reality – the recognition that the international community may be unable or unwilling to develop political solutions to refugee crises that address root causes in order to ensure that refugee protection is truly temporary. This interpretation could explain some of the deterrence features within some modern regional arrange- ments.
These arrangements are all regional in the sense that they address refugee situations that are regional in location and/or impact. However, the response to the reality of refugee flows and forced migration is not necessarily the same in each region. In developing each of these arrangements, states and international organizations such as UNHCR have made choices about how to tackle the protection needs of refugees in each case. Some of the arrangements have focused on particular durable solutions. For example, ICARA I and II focused on the repatria- tion of refugees to their countries of origin, and failing that, temporary
‘local settlement’. CIREFCA provided both local integration of refugees in the countries hosting refugees and repatriation of refugees to their countries of origin. The CPA was premised on temporary protection for refugees in countries of first asylum in exchange for the long-term resettlement of refugees in countries outside the region. The chapters highlight the reasons for the different approaches and the legacies of these approaches for refugees and for the states in the respective regions.
The differences in response may reflect differences in the nature of refugee flows in different regions, such as whether they are mainly intra- or extra-regional, different regional cultures and different capacities (whether real or perceived) for border control. Some of the arrangements for refugee protection may reflect imagined communities, which may, in turn, bolster and/or undermine the protection of refugees. For example, imagined community in the sense of shared values may provide a motivation for refugee protection. This motivation is demonstrated in the commitment to the principle of asylum evident in Latin America, albeit in a somewhat politicized form, as documented in Chapter 1, and in the commitment to human rights evinced by regional arrangements concern- ing human rights in Europe, Africa and Latin America. Imagined communities based on ethnicity, religion or other senses of belonging,
including membership in the Global North, for example, may, however, result in regional arrangements that seek to protect mainly intra-regional refugees, or, conversely, deny the reality of refugee flows within the region on the assumption that the region is not a refugee-producing region and/or seek to deter the arrival of extra-regional refugees. Border control capacity, or the perceived imperative to maintain the impression of border control, may also play a role in shaping the content of regional arrangements. Finally, it should be noted that regions are not simply self-contained or self-defining units and that governments the world over emulate the strategies of other governments. Thus, while we may find authentic expressions of regional identity within some arrangements, such as the commitment to solidarity contained in the MPA, there are also migratory practices that may find expression in regional arrange- ments or national laws and practices, such as safe third country practices, which arguably have been more successful in finding new homes than have the migrants whose movement they seek to regulate.
Regional cooperation also rests on factors such as perceived mutual national interests and/or the presence of a regional hegemon that drives the regional agenda. Thus, efforts to harmonize refugee status determin- ation, reception conditions for asylum seekers and refugee rights may be driven by the desire to avoid perceived pull factors as much as by the desire to provide a principled bottom line of protection for refugees. As a consequence, some arrangements may allocate responsibility for refugee protection, but fail to fairlyshare responsibility. In some cases, too, the UNHCR is intimately involved in the efforts to promote regional arrangements, while in others regional powers may seek to marginalize UNHCR in order to promote their perceived national interests. The marginalization of UNHCR may result in an arrangement that does not adhere closely to the minimum standards set out in the Refugee Convention.
These arrangements have shaped and continue to shape our under- standing of the ways in which states can and should act collaboratively to address the protection needs of refugees. Part II of this book examines and compares these five arrangements, devoting a chapter to each. Each chapter analyses the different elements of each agreement and considers the extent to which each arrangement created both short- and long-term protection dividends for refugees. The chapters examine the distribution of responsibility among states in each of the arrangements and how the arrangements contributed to fostering durable solutions for refugees. The extent to which a particular conception of regionalism might be reflected in the arrangements is another theme explored in this part of the book.
for Indochinese Refugees
The Comprehensive Plan of Action for Indochinese Refugees (CPA) is an example of a responsibility-sharing agreement in the Southeast Asian region. It was intended to bring temporary and durable solutions to thousands of people seeking international protection from Vietnam and Laos between 1979 and 1996. Under the CPA, countries of first asylum in the region, such as Indonesia, the Philippines, Malaysia, Thailand and Hong Kong, agreed to give temporary protection to thousands of Viet- namese and Laotians arriving in their territory. In return, states from outside the region committed to resettle large numbers of these refugees.
Although the name Comprehensive Plan of Action for Indochinese Refugees did not emerge until it was adopted at an international conference in June 1989, the foundations of the CPA were laid at the Meeting on Refugees and Displaced Persons in South-East Asia held in July 1979. The chapter will refer to both the 1979 arrangement and the CPA as needed.