Signs of Real Progress 71 years after Adoption of the UN Refugee Convention
By Katerina Linos & Elena Chachko
More than 100 million people are displaced today, the highest number on record. And yet, there is reason for hope. The international response to the Ukrainian refugee crisis is pathbreaking, and a model for sharing responsibility for refugees globally. It contrasts sharply with some past responses that reflect responsibility dumping rather than responsibility sharing.
The vast majority of the world’s refugees are hosted in low and middle-income countries. These are often the first safe countries bordering conflict and are themselves thinly stretched. There is growing agreement that this is unacceptable, and that more needs to be done to share responsibility for refugees. In 2018, world leaders enshrined responsibility sharing principles in the Global Compact on Refugees and the Global Compact for Safe, Orderly and Regular Migration. Most recently, on June 10, 2022, 20 countries in the Americas, including the US, signed the Los Angeles Declaration, which could represent significant progress in the region.
Responsibility sharing arrangements are unavoidable given current realities. A recent special issue of the California Law Review approaches refugee responsibility sharing from a variety of perspectives. Our contribution analyzes major existing examples to separate genuine responsibility sharing mechanisms that should be encouraged from arrangements that in fact constitute responsibility dumping. We rank responsibility sharing efforts on four dimensions: hosting commitments, monetary commitments, multilateralism, and legal obligations. On each of these dimensions, the response to Ukraine is much more generous than anything that had preceded it in the post-Cold War era.
European states undertook extensive hosting commitments. Just days after the Russian invasion, European leaders promised temporary protection to all Ukrainians displaced by the conflict. This was accompanied with significant monetary commitments, including immediate access to education, work and benefits. The Ukraine response was legally binding and collective, involving all 27 EU member states. Even Hungary and Poland signed on after trying to block earlier EU efforts to share responsibility for Middle Eastern refugees.
The most novel element of the European response was allowing Ukrainians to relocate to any EU country. Ukrainians (and some others fleeing Ukraine) can “choose the Member State in which they want to enjoy the rights attached to temporary protection and to join their family and friends across the significant diaspora networks that currently exist across the Union, rather than needing to apply for protection and stay in the first EU state they reach.”
Typically, asylum seekers cannot travel freely from one state to the next. They are often blocked from moving even within a host state and relegated to overcrowded camps where they cannot work. Local communities quickly get overwhelmed, and xenophobia rapidly develops. Instead, the European response to Ukraine is both generous, and hopefully sustainable, as Ukrainians can more easily work and integrate. The idea of allowing displaced persons free movement, at least within a host state, and even across several states in a region, is well worth emulating in appropriate circumstances.
While it is important to highlight and work to replicate the promising elements of the EU’s Ukraine response, we must not forget its less favorable aspects. The EU failed to meet recent migration crises, including the 2015 influx of Middle Eastern asylum seekers, with the same generosity it afforded Ukrainians. Race without doubt accounts in part for this disparity, alongside gender (most Ukrainian refugees are women and children) and shared geostrategic interests between the EU and Ukraine. In short, Ukrainian refugees are overwhelmingly white, Christian women seeking protection in countries sharing their fear of Russian aggression. Recognizing the disparity problem, however, should not lead us to ignore the virtues of the EU Ukraine refugee and asylum policy, especially as a possible future template. The challenge is to extend those virtues to other regions and mass displacements.
Notably, Europeans are not alone in welcoming Ukrainians. In early March 2022, Homeland Security Secretary Alejandro Mayorkas granted Temporary Protected Status (TPS) to Ukrainian residents in the United States, allowing them to temporarily remain and work in the country. Additionally, the Biden administration created exceptions for Ukrainians from restrictive migration policies at the southern border, and President Biden promised to welcome 100,000 Ukrainians fleeing Russia. The administration also enacted the Uniting for Ukraine program — allowing Ukrainians and their immediate family to arrive in the U.S. for a period of two years, activated various other programs to support those displaced from Ukraine, and allocated significant funding for this purpose. The extensive Ukraine refugee measures appeared to reverberate in policies concerning other refugee situations. Not long after, the Biden administration also granted TPS status to over 74,000 Afghans and 40,000 Cameroonians.
The traditional principles of the international refugee regime are a poor fit for modern displacement crises. The refugee definition requires individualized persecution and denies refugee status to those fleeing war or generalized violence. But when millions flee Ukraine, or Syria, or Afghanistan, at the same time, individualized assessment of each displaced person’s refugee status eligibility is simply impossible. And relying on bordering states to provide shelter will not do. It is crucial to turn our attention to making responsibility-sharing for refugees more widespread and more equitable for both the displaced and host countries. The EU Ukraine response is promising, if imperfect, step toward that goal.
About the Authors
Katerina Linos is the Irving G. and Eleanor D. Tragen Professor of Law and Co-Director, Miller Center for Global Challenges and the Law, Berkeley Law School.
Elena Chachko is the Harvard Law School Rappaport Fellow and an Academic Fellow at the Miller Center for Global Challenges and the Law, Berkeley Law School.
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