A bold rethink of the international protection regime for forced migrants

by Chris Bertram on April 9, 2020

A guest post by David Owen (University of Southampton).

T. Alexander Aleinikoff & Leah Zamore, *The Arc of Protection: Reforming the International Refugee Regime*, Stanford University Press, 2019.

This book is a bold attempt to rethink the requirements of an international protection regime for forced migrants as well as a significant challenge to the view I recently proposed in my own book (reviewed [here](https://crookedtimber.org/2020/02/19/an-important-new-book-about-refugeehood/) by Chris Bertram). Combining a revisionist history of the international refugee regime and a call for a contemporary widening of that regime, it traces proposes a set of principles and practices of protection that the authors take to be adequate to challenges of our current circumstances.

That the international refugee regime is far from well-functioning is hardly a controversial judgment and Aleinkoff & Zamore begin by sketching out the character of its failure and the relationship of that failure to the shift to thinking of refugees in humanitarian terms. As they rightly note, the 1951 Refugee Convention is much more focused than current humanitarian practice on rights and on the integration of refugees – as social, economic and even political agents – into their states of residence. Their reconstruction of the post-WW2 emergence of our current refugee regime provides the basis for the pivotal claim of the book, which is a rejection of what they term ‘the Modern Standard Picture’ (MSP) of refugee protection according to which (1) citizens are entitled to the protection of their basic rights by their home state, (2) a refugee is someone whose home state has failed to protect them so that they have had to flee from it and (3) international protection is a surrogate or substitute for the responsibilities of their home state implemented through the protection of another state. MSP is a widely held view (my own work may be seen as a version of it) but they argue that it cannot make sense of the focus of the Refugee Convention on overcoming obstacles to the rebuilding of refugee lives in the host state by establishing requirements on host states to provide some rights in forms equivalent to those enjoyed by citizens and the remainder in the form enjoyed by the most favoured immigrants: ‘if international protection is a surrogate for anything, it is the inability or unwillingness of the host state to protect and assist refugees in their territory’ (p.51). The simple but radical redirecting of the focus of refugee protection onto the obligation of the international community to provide the rights and resources for refugees to be able to rebuild their lives, to enjoy agency and welfare wherever they are, provides the basis on which their argument and proposals stand.

So what is the scope of international protection and what does it require on this view? Instead of seeing the Convention refugee threatened by persecution as the exemplary figure and hence focusing on widening the scope of refugeehood, the authors propose that the Convention refugee be seen as a special case among the broader category of ‘necessary fleers’, that is persons who are forcibly displaced in the sense that flight is a reasonable response to their circumstances. This is a view that they arrive at, in part, on pragmatic inductive grounds by noting that the international protection regimes has developed since 1951 in four important ways: (1) the classes of protected persons have significantly expanded, (2) protection activities by agencies such as UNHCR have developed beyond the 1951 Convention, (3) at least formally, refugee rights have expanded, and (4) the category of responders has come to include a wider range of agents (including development agencies). They propose the category of ‘necessary fleer’ as a basis for making moral sense of these developments.

The norm that such persons not be returned to danger should act as a general side-constraint on state treatment of necessary fleers but the aim of a protection regimes should be focused (in ranked order) on principles and practices of (a) rescue and safety, (b) enjoyment of asylum, (c) solutions, (d) mobility and (e) voice. The most novel feature of their proposal is their focus on mobility in proposing a strengthened return of something like the Nansen Passport (supplied to refugees in the interwar years) that would allow refugees to exercise agency and pursue well-being by moving between states that are members of international protection regime, for example in pursuit of work or relationships. They rightly note that, today, those forcibly displaced find themselves typically in a condition of enforced immobility, subject to ‘containment’ in the state of first refuge – and urge powerfully that enabling mobility would benefit necessary fleers and states alike if introduced in a controlled way. The book concludes with concrete proposals for the establishment of an international protection regime characterised by these features. Although a slim volume, this is a book packed with provocation and in its critique of MSP it firmly challenges orthodoxies of refugee ethics. It woke me from my dogmatic slumber.

{ 1 comment }


Matt 04.10.20 at 2:00 am

Thanks for this, David – it’s very interesting, and I’m clearly going to need to read this. (I’m glad to hear that it’s a “slim” volume!) This part is interesting to me:

Instead of seeing the Convention refugee threatened by persecution as the exemplary figure and hence focusing on widening the scope of refugeehood, the authors propose that the Convention refugee be seen as a special case among the broader category of ‘necessary fleers’

In some ways, this is close to my view except that I do think it can make sense to put persecution at the core of refugee protection, because those persecuted by states (or relevantly situated non-state actors) are clear examples of the sort of people who will need not just temporary protection but a new home. For this, the fact that such people cannot (or sometimes will not) be easily helped “at home” is relevant as well.

The idea of a passport allowing such people to seek their own new home (if I’m understanding the idea correctly) is an intriguing one, and may, within limits, be a sort of ideal. I worry, though, that it would, in practice, be harder to get states to buy into, especially if it made it difficult to comply with or satisfy other immigration related goals. But, it’s certainly worth thinking through. (There would likely need to be limits, I’d think, to prevent “popular” states from having to bear too much of the burden in too short of a time, but this would still be compatible with significantly more freedom of choice for those seeking a new home.) I wonder if it would make sense to try such things on a limited scale among regional areas and see how it went. In a better world, we might imagine such an arrangement between the US and Canada, for example, with a person accepted as a refugee by either being able to live in either one afterwards. The one other worry I’d see, though, is with such a system there might be a tendency to use the strictest system of refugee determination found among the parties taking part for making initial determinations, thereby lowering over-all levels of protection. That’s not an impossible obstacle, and perhaps it is addressed by Aleinikoff & Zamore, but it’s something I’d worry about in trying to set up such a system.

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