An end to refugee protection?

Richard Carver writes:

Two CENDEP scholars have contributed to a symposium in the Journal of Human Rights Practice looking at new challenges posed by the historically high level of forced migration in the world today. I co-edited the symposium, with Kirsten McConnachie from the University of Warwick and Martin Jones from the University of York, as well as writing an article on the role of national human rights institutions in refugee protection. CENDEP director Cathrine Brun, with Anita Fábos of Clark University, contributed a piece on new approaches to “durable solutions” for refugees and internally displaced persons.

The deliberately provocative title of the collection is “The end of refugee protection?” This is probably an instance of Betteridge’s law of headlines (which states that any headline that ends in a question mark can be answered by the word “No”). However, the implication is that the existing international refugee regime has been inadequate in the face of the multiple crises of the past few years. The common theme is not so much that refugee protection is at an end, as that there is a need to adopt innovative solutions. Cathrine and Anita, for example, point out the importance of bottom-up approaches based on refugees’ own needs and initiatives in a situation where protracted displacement has become the new normal.

It might seem unremarkable that a human rights journal should host a discussion on refugees, yet the sad reality is that the worlds of human rights and refugee protection are often far apart. The international legal regimes governing human rights and refugees were adopted at the same time (late 1940s and early 1950s), in response to the same set of events – the Second World War, Holocaust and subsequent refugee crisis. Yet the two sets of norms use completely different language and conceptual frameworks. The third legal framework updated at the same time, international humanitarian law (IHL), is different again. This would be all well and good if the aim were to generate work for international lawyers, but it can lead to crucial misunderstandings and efforts that are at cross-purposes. To give one simple example, the word “protection,” contained in the title of our feature, has quite distinct meanings in human rights, refugee law, and IHL.

One practical consequence of this has been that the communities of practice of human rights and refugee advocacy have often been quite distinct and separate. (There are, of course, important exceptions, such as Amnesty International, a human rights organization that has long worked on behalf of refugees.) My article in this symposium, in common with several others, argues for a new convergence between human rights and refugee protection.

Joint team from Greek and Macedonian Ombudsmen visit refugee border camp

The example I explore is a rare piece of good news to emerge from the European “refugee crisis.” National human rights institutions (NHRIs) – that is official human rights commissions or ombudsmen – have not historically done much work on refugees. This is because they are usually complaints-driven. Refugees tend not to be aware of the existence of such bodies or how to file complaints with them. In recent years, however, many European NHRIs have taken on a role in inspecting places of detention. This is usually because of a mandate given to them under the snappily titled Optional Protocol to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – understandably referred to by its acronym, OPCAT.

The OPCAT requires that these “national preventive mechanisms” have legal powers to carry out visits to places of detention or imprisonment in order to inspect conditions and prevent torture or other ill-treatment. Among the places to be visited are immigration detention centres (and often, by extension, other migrant encampments, even if these are not formally places of detention). In this role, NHRIs, especially in southern Europe, have encountered refugees directly. The visiting bodies in countries such as Greece, Macedonia, Serbia, and Croatia have played an important role, not only in inspecting the conditions in which refugees are housed, but also in giving them advice and conducting more general advocacy on their behalf. International coordination between the inspection bodies has been aimed at creating a common response and making sure that refugees do not fall between the cracks of different national protection systems.