Human security and external burden-sharing: the European approach to refugee protection between past and present

Abstract

The discourse surrounding the link between human security and the European Union's policy on external burden-sharing is connected to the concept of securitisation developed in the 1990s, when the language of human security was first used to promote solutions in the regions-of-origin of refugees through external burden-sharing. External forms of burden-sharing, nevertheless, can be traced back to the UNHCR's use of its ‘good offices’ in the 1960s to promote ′regional solutions in Asia, and reflect a slow evolution since the adoption of the 1951 Convention. In order to understand this evolution this article adopts an analysis informed by policy mapping of targeted representative cases combined with a comparative approach towards those cases. It proposes for the subject to be addressed from the perspectives of the states; protection seekers; and the balance of refugees' rights and state security. This article argues that the concept of external burden-sharing is compatible with effective refugee protection and their more rational distribution, but only when it offers long-term solutions based on genuine protection and not as a surrogate to the granting of asylum in the European Union. According to the analysis provided, this article concludes that the current European Union policy on refugee protection is implicitly guided by a restrictive rationalisation of movements as a result of a slow evolution of a distorted and not effectively implemented version of external burden-sharing. First through promoting local solutions and then the human security concept. Yet, this policy cannot represent an acceptable long-term alternative to territorial asylum or an admissible form of external burden-sharing, because protection seekers' movements are guided by the safety and effectiveness of protection and the current European Union external approach does not offer such protection.

Keywords:

• external burden-sharing
• refugees
• human security
• Asia
• R2P
• EU

Disclosure statement

No potential conflict of interest was reported by the author.

Note on contributor

Paolo Biondi is a Doctoral Candidate at the Institute of Advanced Legal Studies, School of Advanced Study, University of London. He holds a Master's degree in Law and one in Human Rights and Democratisation. He has previously worked for the European Parliament, the Migration Policy Centre (EUI), the UNHCR Liaison Office to EASO, the UNHCR Liaison Office to OSCE and Vienna-based UN Agencies.

Notes

1. Eighty-six percent of the world refugees are hosted in developing countries. UNHCR Global Trends Report (2013), 2, http://unhcr.org/trends2013/.

2. The term ‘burden sharing’ in this article is used to describe the financial assistance, humanitarian provisions, and resettlement contributions supplied by developed states for refugee protection and durable solutions to the country of origin, host states of first asylum or countries of secondary movement in other regions.

3. (1951) 189 UNTS 137. Opened for Signature 28 July 1951. Entered into Force 22 April 1954.

4. Susan Kneebone, ‘The Refugee Definition and Humanitarian Protection', in Research Handbook on International Human Rights Law, ed. Sarah Joseph and Adam McBeth (Cheltenham, UK: Edward Elgar Publishing, 2010), 216.

5. National Security Council, ‘Psychological Value of Escapees from the Soviet Orbit', Security Memorandum, 26 March 1953. See also James C. Hathaway, The Law of Refugee Status (London: Butterworths, 1991), 25.

6. Prima facie refugee determination is performed on the basis of the objective circumstances leading to the mass displacement and the evident refugee character of the individuals concerned. See UNHCR, Handbook for Emergencies, 2nd ed. (UNHCR, 2000), 13; UNHCR, ‘Note on International Protection' (31 August 1993) UN Doc. A/AC.96/815 [27]. UNHCR Global Consultations, ‘Protection of Refugees in Mass Influx Situations: Overall Protection Framework' (EC/GC/01/4) (19 February 2001), 18.

7. Leon Gordenker, Refugees in International Politics (New York: Columbia University Press, 1987), 39.

8. Ibid., 39. See also UNHCR, Handbook for Emergencies, 13; UNHCR, ‘Note on International Protection'; UNHCR Global Consultations, ‘Protection of Refugees in Mass Influx Situations'.

9. Andreas Gémes, ‘Deconstruction of a Myth? Austria and the Hungarian Refugees of 1956–57', in Time, Memory, and Cultural Change, ed. Sean Dempsey and David Nichols (Vienna: IWM Junior Visiting Fellows’ Conferences, Vol. 25, 2009).

10. Tony Kushner and Katharine Knox, Refugees in an Age of Genocide. Global, National and Local Perspectives during the Twentieth Century (London: Frank Cass, 1999), 280–90.

11. The Refugee Convention contains a number of restrictions relating to the eligibility of an individual to be considered a refugee. Beyond the temporal and geographic limitation of Article 1(B), Article 1(D) excludes individuals who were (at the time of the 1951 Convention) already receiving protection or assistance from another United Nations (UN) agency. This provision continues to apply to Palestinian refugees receiving assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The 1967 Protocol removed these restrictions; however it also gave state parties the option to continue to apply them.

12. Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford: Oxford University Press, 2007), 27.

13. Ibid.

14. Aristide R. Zolberg, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (Oxford: Oxford University Press, 1989), 157–160. Astri Suhrke, ‘Burden-Sharing During Refugee Emergencies: The Logic of Collective Action Versus National Action', Journal of Refugee Studies 11, no. 4 (1998): 406.

15. The Japanese pledged 60 million dollars, equivalent to almost half of the cost of the UNHCR budget, for the Indochinese refugees in 1979.

16. Suhrke, ‘Burden-Sharing During Refugee Emergencies', 406; and Richard Towle, ‘Processes and Critiques of the Indo-Chinese Comprehensive Plan of Action: An Instrument of International Burden-Sharing?’, International Journal of Refugee Studies 18, no. 3–4 (2006): 537.

17. Zolberg, Escape from Violence, 173.

18. Alexander Betts, ‘Comprehensive Plans of Action: Insights from CIREFCA and the Indochinese CPA’ (UNHCR New Issues In Refugee Research Working Paper No. 120, January 2006), 62.

19. Guy S. Goodwin-Gill, ‘International Protection and Assistance for Refugees and the Displaced: Institutional Challenges and UN Reform' (paper presented at the Refugee Studies Workshop, 24 April 2006).

20. Ibid.

21. Elena Jileva, ‘Larger Than the European Union: The Emerging EU Migration Regime and Enlargement’, Migration and the Externalities of European Integration, ed. in Sandra Lavenex and Emek M. Ucarer (Lanham, MD: Lexington Books, 2002).

22. Gil Loescher, ‘The UNHCR and World Politics: States Interests vs. International Anatomy', International Migration Review 35, no. 1 (2002): 44, at 45.

23. The term ‘responsibility sharing’ is used to define how the normative responsibility for refugee protection should be shared between states and what this means in legal terms when there is a lack of international cooperation or solidarity for the scope of burden-sharing.

24. Mehreen Afzal, ‘Rethinking Asylum: The Feasibility of Human Security as New Ratione Personae Protection', Journal of International Law & Policy 3 (2005): 2, 29–30.

25. Ibid.

26. James Bernard Quilligan, ‘The Brandt Equation: 21st Century Blueprint for the New Global Economy' (2002), 13, http://www.brandt21forum.info/BrandtEquation-19Sept04.pdf.

27. Transnational security is referred as a ‘paradigm for understanding the ways in which governments and non-State actors, functioning within and across borders, interact and affect the defence of States and their citizens’. See Richards H. Shultz, Roy Godson, and George Quester, eds, Security Studies for the 21st Century (Washington, D.C., and London: Brassey's Inc, 1997).

28. United Nations Development Programme (UNDP), Human Development Report 22 (1994), 23.

29. Kneebone, ‘The Refugee Definition and Humanitarian Protection', 230–1; and Michael Barnett and Thomas G. Weiss, eds, Humanitarianism in Question: Politics, Power, Ethics (Ithaca and London: Cornell University Press, 2008), 5.

30. Wolfgang Benedek, ‘Human Security and Human Rights Interaction', in Rethinking Human Security, ed. Moufida Goucha and John Crowley (Oxford: Wiley-Blackwell, 2008), 98.

31. Ministerial Meeting of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Geneva, Switzerland, 12–13 September 2001, Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 2, 6, UN Doc. HCR/MMSP/2001/09 (16 January 2002).

32. Brian Barbour and Brian Gorlick, ‘Embracing the “Responsibility to Protect”: A Repertoire of Measures Including Asylum for Potential Victims', International Journal of Refugee Law 20 (2008): 533–61.

33. Bhupinder S. Chimni, ‘Globalization, Humanitarianism and the Erosion of Refugee Protection', Journal of Refugee Studies 13 (2000): 243, 244.

34. Ibid.

35. Eve Lester, ‘Socio-Economic Rights, Human Security, and Survival Migrants: Whose Rights? Whose Security?’, in Human Security and Non-Citizens: Law, Policy and International Affairs, ed. Alice Edwards and Carla Ferstman (Cambridge: Cambridge University Press, 2010).

36. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, Article 13.

37. Commission of the European Communities, Communication to the Council and the European Parliament on Immigration and Asylum Policies, COM (94) 23 final, 23 February 1994.

38. Council of the European Union, Note from the Presidency to K4 Committee: Strategy Paper on Immigration and Asylum Policy, CK4 27, ASIM 170, 9809/98 (OR.d) 1 July 1998, http://www.proasyl.de/texte/europe/eu-a-o.htm.

39. Ibid., 27 and 37.

40. Ibid., 41.

41. See ‘High Level Working Group on Asylum and Migration. Report to the European Council in Nice', Council Document 13993/00JAI 152 AG 76, of 29 November 2000, 51. See also, Maria-Teresa Gil-Bazo, ‘HLWG Action Plans: Assessment of the Human Rights Dimension', in ECRE, ‘The ECRE Tampere Dossier. A Compilation of Non and Inter-Governmental Observations on the Special Meeting of the European Council on the Establishment of an Area of Freedom, Security and Justice', 15–16 October 1999, Tampere, Finland; and a selection of presentations made at the ‘ECRE EU Tampere Summit Parallel Meeting', June 2000, 59–60.

42. Maria-Teresa Gil-Bazo, ‘The Practice of Mediterranean States in the Context of the European Union's Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited', International Journal of Refugee Law 18, no. 3–4 (2006): 589.

43. See Madeline Garlick, ‘The EU Discussions on Extraterritorial Processing: Solution or Conundrum', International Journal of Refugee Law 18, no. 3–4 (2006): 601. 

44. See UNHCR High Commissioner's Forum, Convention Plus Targeting of Development Assistance for Durable Solutions to Forced Displacement. FORUM/2005/8, 10 February 2006, http://www.unhcr.org/437d9f152.html.

45. Ibid.

46. Katy Long, No Entry: A Review of UNHCR's Response to Border Closure in Situations of Mass Refugee Influx (UNHCR PDES, 2010).

47. Afzal, ‘Rethinking Asylum’, 29–30.

48. Ibid.

49. Ibid., 31.

50. Andrew Geddes, ‘Migration as a Foreign Policy? The External Dimension of EU Action on Migration and Asylum' (report presented at the seminar ‘Migration as Foreign Policy', Stockholm, 21 April 2009), 10, http://www.sieps.se/sites/default/files/528-2009-2rapport.pdf.

51. See Dallal Stevens, UK Asylum and Law Policy-Historical and Contemporary Perspectives (London: Sweet & Maxwell, 2004), 14.

52. For an overview of the EU's external ‘concentric circles' cooperation see Alexander Betts, ‘Towards a Mediterranean Solution? Implications for the Region of Origin', International Journal of Refugee Law 18, no. 3–4 (2006): 666, 671.

53. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, Preamble.

54. Refugee Convention, Article 1.

55. Chimni, ‘Globalization, Humanitarianism and the Erosion of Refugee Protection', 252.

56. UNHCR, Refugees, Internally Displaced Persons and the ‘Responsibility to Protect' (PDES, 2010), 8.

57. Chimni, ‘Globalization, Humanitarianism and the Erosion of Refugee Protection', 252.

58. Long, ‘No Entry’, 15.

59. Barbour and Gorlick, ‘Embracing the “Responsibility to Protect”’, 561.

60. Kay Hailbronner, ‘Non-Refoulement and Humanitarian Refugees', Virginia Journal of International Law 26, no. 4 (1986): 857, 869.

61. Long, ‘No Entry’, 1–2.

62. The preamble to the 1951 Convention states that: ‘The grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation.' The ExCom Conclusion on International Cooperation and Burden and Responsibility Sharing in Mass Influx Situations, agreed in 2004, focuses specifically on the question of how to balance refugees' rights against the security and capacity questions surrounding mass influx. It reiterates the normative principle that ‘persons who arrive as part of a mass influx seeking international refugee protection should always receive it at least on a temporary basis’. However, in addressing practical responses to burden-sharing the conclusion underlines the continued reluctance of states to share the physical realities, rather than simply the financial costs, of refugee crises. Hathaway stresses that there is a legal basis for restricting non-refoulement if a state's basic national survival is threatened by a mass influx. Katy Long stresses instead that there is a presumption that in this case, in order to balance the rights of the refugees against the state's security, the burden will be shared between states (James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005), 367). This dilemma is better expressed by the fact that ‘just as a refugee has a right to seek asylum, but no State has the obligation to grant it, a host State has at least in theory the obligation to protect all members of a mass influx from refoulement while the international community has no legal obligation to burden-share'. For more on this topic see Long, ‘No Entry’, 12, 13.

63. Hathaway, The Law of Refugee Status, 26.

64. See Betts, ‘Towards a Mediterranean Solution?’, 666–71.

65. Migration Policy Centre, ‘The EU Response to the Syrian Refugee Crisis. What Next?’ (MPC research report 2012/14), http://www.migrationpolicycentre.eu/docs/MPC%202012%2014.pdf.

66. Ibid.

67. Ibid.

68. Ibid.

69. European Commission, Press Release (24 October 2012), ‘Justice and Home Affairs Council: 25–26 October 2012', http://europa.eu/rapid/press-release_MEMO-12-807_en.htm.

70. European Commission, Press Release (10 September 2013), ‘Lebanon, Further Support of 58 Million Euro to Deal with Syrian Crisis', http://europa.eu/rapid/press-release_IP-13-826_en.htm.

71. European Union, Press Release (14 January 2014), ‘Syrian Crisis: EU Pledges Additional Funding for Humanitarian Aid as Needs Continue to Rise', http://europa.eu/rapid/press-release_IP-14-17_en.htm.

72. Migration Policy Centre, ‘The EU Response to the Syrian Refugee Crisis'.

73. Euroactic and Reuters, ‘EU Considers Syrian Refugee Protection’ (24 July 2012), http://www.euractiv.com/global-europe/eu-considers-syrian-refugee-prot-news-514079.

74. Amnesty International, ‘Briefing: An International Failure: The Syrian Refugee Crisis’ (13 December 2013), http://www.amnesty.org/ar/library/asset/ACT34/001/2013/ar/8a376b76-d031-48a6-9588-ed9aee651d52/act340012013en.pdf.

75. ECRE, ‘Sweden Calls for Solidarity with Syria's Refugees – EU Could Resettle 100,000 People if all States Resettle Proportionally as Many Refugees as Sweden’ (4 April 2014), http://ecre.org/component/content/article/70-weekly-bulletin-articles/665-sweden-calls-for-solidarity-with-syrias-refugees-eu-could-resettle-100000-people-if-all-states-resettle-proportionally-as-many-refugees-as-sweden.html.

76. Ibid.