Here is the final piece in a four-part series on the Global Compact on Refugees. Follow the links below to read the previous articles:
December 6, 2018 By Ishita Kumar and Nayantara Raja
Despite a sharp decline in refugee numbers over the last year, the popular narrative surrounding the refugee crisis tends to be focused on asylum seekers undertaking perilous journeys to reach the European Union (EU). The long-brewing refugee crises in South Asia have received considerably less coverage, notwithstanding the fact that the region is home to nearly 2.6 million refugees. The protracted atrocities inflicted by the Burmese military on the Rohingyas, on the one hand, and the escalation of the conflict between the Afghan government backed by international forces and the Taliban, on the other, have made the region a hotbed for conflict and crisis-induced displacement.
There is no refugee-specific law in any of the countries in South Asia; asylum seekers and refugees are governed by ad hoc administrative arrangements that tend to be arbitrary and discriminatory. Additionally, apart from Afghanistan, none of the countries in the South Asian region, which includes Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka, are signatories to the 1951 Refugee Convention or the 1967 Protocol. As noted by Prof. C.R. Abrar, some of the reasons why countries in the region have abstained from signing the instruments are: first, wariness of the perceived ‘interventionist’ activities of UN and other international agencies; second, the apprehension of policymakers that the consequences of signing the Convention might entail obligations that they may not be able or prepared to meet in terms of resource mobilization; and third, that economic migrants might benefit unfairly from the Convention. Prof. B.S. Chimni has argued that South Asian states should refrain from acceding to the Convention as the instrument is being dismantled by the very states that framed it, and that any talk of accession should also be linked to the withdrawal of measures that constitute the non-entrée practices by many states in the Global North.
Notwithstanding their reluctance to be a part of the international refugee law framework, which is largely seen as euro-centric and therefore unsuited to the socioeconomic context of the Global South, South Asian countries have demonstrated a long-spanning record of accepting refugees. This historical humanitarian approach is, however, under attack because of the increasing inward-looking sentiment across jurisdictions, emerging xenophobia, and a trans-regional diffusion of restrictive asylum practices. Against the backdrop of this evolving regional narrative, the Global Compact on Refugees (GCR), which aims to provide a blueprint for supporting the world’s refugees, can provide a very relevant barometer of conditions for refugees in the region.
The GCR aims to usher in a new era of stronger and fairer response to large refugee movements and protracted refugee situations. It aims to achieve its core objectives by apportioning responsibility through multi-sectoral engagement, thus bringing in a whole-of-society (WoS) approach to the refugee protection regime. This WoS approach is inclusive and creates room for new actors to support innovative interventions at the community level and private actors previously not involved in refugee protection to complement the work already being done by traditional humanitarian response mechanisms.
This article’s main aim is to interpret the implications of this novel approach for refugee protection within the South Asian context, where there is a legal vacuum in terms of defined rights and established processes. The authors further endeavor to provide insight into the effectiveness of the WoS approach.
What is the WoS approach?
The GCR (para 3) discusses three key tools to effect a regime of responsibility-sharing: (i) funding and effective and efficient use of resources; (ii) a multi-stakeholder and partnership approach; (iii) data and evidence. The multi-stakeholder or WoS approach, as a concept, refers to many components and overlaps with the other two tools in effecting responsibility-sharing.
First, it proposes a whole-of-government approach to include existing local community governance institutions in refugee response and build their capacity in line with national laws and policies. Second, it aims to mobilize new actors and resources to engage in refugee protection to ensure a stable and sustainable protection regime. These include development actors, faith-based actors, private enterprises, sports and cultural institutions, to name a few. Third, it recommends that refugees be consulted and that they engage in the design and implementation of any plans for refugee response. Finally, the GCR recognizes the role of established and traditional actors in the response regime—including the United Nations system, humanitarian organizations, and civil society actors—and aims to “ensure the complementarity” of their interventions.
This synergy and complementarity should be based on a thorough analysis of the risks and benefits of involving institutions that have not worked in this sector of activity, while trying to avoid potential pitfalls and maximize benefits to refugees. This is particularly true when considering the South Asian context discussed below.
What are the implications of the WoS approach in South Asia?
The final draft of the GCR (para 33) states: “While recognizing the primary responsibility and sovereignty of States, a multi-stakeholder and partnership approach will be pursued, in line with relevant legal frameworks and in close coordination with national institutions.” This confirms that the primary role is retained by governments, giving them the lead in refugee response and protection. Such a role is further emphasized by the fact that, apart from institutions like the World Bank and United Nations, most other stakeholders that have been proposed to be part of the GCR’s multi-stakeholder approach fall within a State’s jurisdiction and, thus, its regulations. Any intervention that is made with a WoS approach in mind should be overseen by the concerned host government.
The South Asian context has specific peculiarities. As mentioned, South Asian countries are characterized by the lack of definitive asylum frameworks, which in turn can hinder the adoption of a WoS approach, deterring non-traditional actors from getting involved in refugee protection due to the uncertain nature of the policies in these countries. This is better understood in the context of the Rohingya refugee crisis that has rendered Bangladesh host to nearly one million Rohingyas since late 2017. It is becoming apparent that Bangladesh’s decision to allow the International Organization for Migration (IOM) to take the lead in the international relief efforts has led to wasteful friction between the UNHCR and IOM, as well as internal disputes within the UN. Given that this is the outcome of an overlap of mandates even in the context of traditional humanitarian agencies, one can only imagine what could happen when others, including private actors, are brought into the mix with nothing more than a de facto structure in place.
Further, the GCR (para 28) highlights the value of regional cooperation in addressing refugee situations. In the 1990s, the South Asian Association for Regional Cooperation (SAARC) made some unofficial efforts toward developing a regional refugee protection regime in South Asia. In 1994, UNHCR constituted an Eminent Persons Group for South Asia that resulted in the 1997 Dhaka Consultation at which a model national law was approved. This was the first step in building a regional consensus on preventing, managing, and solving refugee situations in the region in a comprehensive and humane manner.
However, these efforts did not culminate in any concrete domestic law in any of the member states; the Model Law remained a mere academic exercise, unable to advance the bilateral approach that continues to dominate the refugee narrative in South Asia. Currently, SAARC cooperation is largely limited to ‘softer’ policy areas like poverty alleviation, health, and environmental security, especially in light of the bar on its jurisdiction to discuss contentious bilateral issues.
A recent instance of this bilateralism is the accord between Bangladesh and Myanmar to repatriate all Rohingya refugees from the former to the latter. Numerous experts have warned that returns are unthinkable and premature, given the scale of persecution against the community in Myanmar. Although the scheduled repatriation has been delayed for now, bilateral negotiations continue and serve as a reminder of how foreign policy and domestic political considerations can prevail over considerations of refugee protection, putting vulnerable groups in positively dangerous situations. This situation should awaken the region to the urgent need to abandon the existing approach of viewing refugee situations as bilateral issues, rather addressing them within a regional framework, as has been proposed by the GCR.
Actualizing the WoS approach in the South Asian context would require that the realities of the ad hoc framework of refugee governance in this region be taken into account.
Is the GCR an effective tool of advocacy for supporting refugees in the region?
Refugee protection is fundamentally a responsibility of States. While the original purpose of the Refugee Compact was to define a process for “responsibility-sharing,” governments have since retreated from this ambition. The “zero draft” that was circulated in June 2016 was entitled the “Global Compact on Responsibility Sharing for Refugees”; however, by the time it materialized as Annex 1 to the New York Declaration agreed at the UN in September, it had become a “Comprehensive Refugee Response Framework.” Against the backdrop of weak political will and in light of the ad hoc South Asian approach, it is imperative that the WoS approach not be seen as an effort to shift responsibility away from States.
Having said that, it is true that the WoS approach has vast benefits and potential; at the very least, it gives room to support innovative and coordinated interventions from the community and private actors. A case in point would be the success of Canada’s program for private sponsorship of refugees, which shows how small groups of community members can make significant contributions to refugee protection. WoS contributions can arguably present an opportunity to explore the untapped potential to provide additional capacity to expand refugee assistance, protection, and solutions. However, the concerns regarding the dilution of the concept of state responsibility and responsibility-sharing remain. This is especially true given the declining appetite of the Global North to accept those fleeing persecution and violence.
It is important that the WoS approach not be seen as a substitute for the durable solutions that are premised on a rights-based approach. It should be seen only as a means to build greater capacity across different stakeholders. Governments must use the WoS approach to complement their own efforts and establish concrete oversight mechanisms to ensure unhindered responses to refugees. The difficulties involved in the ongoing quest for effective, durable solutions for refugees in the current climate should not derogate from the continued advocacy for fairer and more equitable and predictable responsibility-sharing, while retaining the centrality of refugee rights.
Ishita Kumar and Nayantara Raja work as Legal Consultants for the Migration & Asylum Project (M.A.P.), India’s only refugee research centre. M.A.P. is one of the foremost advocates for refugees in the South Asia region. Ishita provides specialized assistance to clients who have faced gender-based violence. She also conducts outreach activities with refugee women and assists in strategic litigation. Nayantara provides legal assistance to clients who are survivors of torture and other forms of persecution and works on strategic litigation efforts.
Photo: Rohingya refugees are resorting to increasingly desperate measures such as makeshift rafts to cross the Naf River to Bangladesh. UNHCR/Andrew McConnell