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MMC interviews Alexander Aleinikoff
“Safety first”

The following interview was originally compiled for the Mixed Migration Review 2019 and has been reproduced here for wider access through this website’s readership.

In the likely absence of imminent global peace, there is little chance mixed migration flows will diminish in the foreseeable future, predicts Alexander Aleinikoff. This calls for an overhaul of the outdated international system for managing refugees and migrants, one with a new vision of what protection means, and seats reserved at the policy table for those on the move.

UNHCR reported earlier this year that the number of displaced and refugees was over 70 million people – a record high. Why are the numbers so high and what will the future numbers look like?

I think there are two different causes. There is forced displacement when societies fall apart, when groups within different states take up arms against each other, and then there is displacement caused by natural disasters and the climate crisis. Combined, these send lots of people across borders.

In terms of future movement, unless peace breaks out all over the world and in every country of the world, you’ll continue to see people forced from their homes because of conflict. And then on top of that, there are very few solutions, so people don’t go home, so you havenew flows on top of existing displacement. In earlier times, displaced persons either returned home or were integrated into the societies that gave them safety, so the numbers didn’t increase so dramatically.

In terms of migrants, people not fleeing because of violence, I think it’s very likely that those numbers will go up. The World Bank has reported on the number of jobs that will be needed, employment that’ll be needed in the Global South to match the increase in the size of the labour force over the next 10, 20, 30 years. And then, I think climate is going to play a major role in movement of people either whether it’s what we call “slow onset” – drought over many years, or sea level rise – or more dramatic events, tsunamis and big storms and lots of rain that force people out as well. So for the future, it seems likely that both the number of people forcibly displaced and who otherwise choose to move will continue to go up.

Existing refugee numbers already seem to present an intractable challenge at a political and societal level. What will it take to encourage people to absorb future greater numbers of displaced people and refugees? What paradigm shift is necessary here?

It’s not just absorption. It’s also safe return. There are lots of ways that people can move out of the status of refugee or displaced person. I think you see beginnings of that in the two Global Compacts. The problem is that there is no current structure in the refugee regime for developing comprehensive solutions. Displacement situations are handled on a case-by-case basis without learning from one situation to another and without significant resources being devoted to them. So it will require both structural change and then political will.

To what extent is the current refugee regime struggling to address the international refugee situation? What are the key failings?

When the [1951] Refugee Convention was adopted and the regime was put in place, the thinking was that people would flee across borders, would be taken care of for some period of time and then they would be able to go – or actually, in the beginning, they would be absorbed into the countries that welcomed them because this was going to be a flow from Eastern Europe to Western Europe and there were political reasons to absorb the Eastern Europeans coming to the West. Over the years that gave way, and we’re now in a situation where the majority of refugees are in protracted situations – they can’t go home and are not offered permanent settlement elsewhere.

The central failing of the system is that people do not get out of these refugee situations. This means that the flow across the Mediterranean in 2015, which sent political shockwaves through the EU and brought the EU to its knees politically, is not the major problem. Yes, it was terribly difficult for people crossing and those thousands who lost their lives, it was a horrible tragedy, but the equally important and usually ignored issue, at least in the Global North, are these long-standing situations in the South where people are given emergency relief when they flee and allowed some kind of status across a border, but the conflicts that sent them don’t get resolved, the countries into which they fled don’t absorb them, and resettlement opportunities are very slight. So that is the central failure of the current system: it does not have a structure or a set of norms for dealing with these long-standing situations, so people stay refugees for years and for decades.

Do you think there’s a tailwind being built up of like-minded people like yourself, academics, activists, governments who feel the current regime is not serving the population need? Where does this put UNHCR in terms of the calls for reform?

There have been a couple of developments over last number of years that are important. One is the recognition that the development agencies need to play an active part in resolving these situations; so the role of the World Bank here really is a game changer – as are the actions of other development actors who have come in – and that is recognised in the Comprehensive Refugee Response Framework and in the Global Compact for Refugees.

Second, there is a recognition of the need for support platforms that would bring dedicated resources to resolve these long-standing situations. These are important changes that UNHCR supported and was behind and helped craft. So I don’t think UNHCR is politically in a tough situation that way, I think that they have supported efforts that will lead us towards making progress.

I think that the hard problem is with the right wing and the populist politics in the donor states and the so-called asylum crisis in the global north. The actions of the United States in terms of how it’s treating asylum seekers – which really betrays the history of the US welcome of refugees – in particular has done great damage. The 75 percent reduction in refugee [re] settlement numbers, the treatment of asylum seekers at the southwest border, all send a message of unwelcome and disdain for helping to move the system forward.

That being said, I think the New York Declaration and the Global Compact on Refugees are ways to move forward, and now that has to be built on; nations need to get behind the effort, even if the United States is not going to be a significant actor. The US funding for UNHCR, I think it’s still at an all-time high now, so that has not been cut back.

It could be argued that countries and blocs such as the US, Australia, Europe and others are becoming more brazen in their breaching of the international agreements on refugees and are now doing their own thing. Do you think this is a long-term trend or a short-term trend, and what are the risks if this trend carries forward?

Yes, but I think they’ve always done their own thing. I think the implementation of refugee norms has always been left to states; there’s no international adjudication system or enforcement system, so UNHCR can advise but it’s always left to the states as to how they choose to interpret the law. I would distinguish between rights of access and then rights once recognised as refugees; so the global northern states, for people who are recognised as refugees, still give a pretty full portfolio of rights, right to work, right to social benefits and the like. It’s getting there, and getting recognised, that’s become the difficulty. We see a plethora of policies in the global North to deter, to detain, to deflect people from access. And that’s in part a function of people thinking, “Well, if we recognise them, they’ll now have all these rights.” I think the problem in a lot of the hosting states in the global South is different. There people are welcomed in, but they’re denied rights once they enter, so in many places refugees do not have the right to work, are not protected by social protection schemes, they’re limited to living in camps, they’re not given free movement, all of which are rights protected by the Convention. So you have different rights problems in different regions of the world.

If the assistance for millions of refugees looks like containment in the global south – and it looks like that is the best the international community can agree on – is that better than opening the whole question of refugee protection and assistance and risking a rollback where many countries might refuse to sign a newly negotiated agreement or some new compact?

I don’t think we’re risking more of a rollback than we’ve seen. I think one of the really interesting things about the New York Declaration and the Global Compact on Refugees is that they affirm the fundamental norms of the system, at a time where one might have thought there would be rollback. It was really in some ways the worst time to be writing these documents, given what was happening across the Mediterranean and elsewhere around the world, and yet they stood firm on those principles.

Refugees make up a very small proportion of the world’s population and even a minority of persons who are forcibly displaced from their homes. So yes, we need to make the refugee system work better, but then there are tens of millions of people who are not receiving formal protection and other kinds of assistance outside their country, on the move, some of them forced from their homes, and that is to me, even a bigger challenge in terms of the demands on the international community.

Looking at the mixed migration flows, it’s been said that governments have a stark choice ahead of them: they can either facilitate safe, legal migration or they can attempt to stop people moving and create crises where they are.

I think the southwest border of the United States makes that very clear, where President Trump has tried measure after measure to stop the flow, and it hasn’t been stopped so far. But if it is stopped, it’s going to be stopped with violence against the people who are fleeing violent situations, and that can’t be an appropriate mix of policies.

Do you think we’re seeing countries quite worried about creating a legal precedent in granting environmental-induced mobility refugee status?

Of course. I mean, the numbers here are potentially huge, and states are not interested in taking on new international obligations; even the Global Compacts on refugees and on migrants do not establish binding norms. So we’re not in a position where major international treaties, conventions, norms are going to be adopted by states. We’re going to have to think of other strategies of persuasion to get states to respond to what will be the coming tens of millions of people forced from their homes.

Most persons displaced due to environmental events will stay within their countries of origin, but many – including people fleeing sinking islands – will cross international borders, and we have no international structure, no international norms, and those governance issues really need to be built over the next few years.

And there we’re only at a very rudimentary stage, and we haven’t decided yet whether this fits into the refugee system. Should it come within a structure of regulating migration, or does it belong under the UN Framework Convention on Climate Change? Is it an aspect of climate change issues? None of those issues have been worked out. And that is the challenge I think going forward which really has to be dealt with very, very soon.

The compact on refugees doesn’t mention environment-induced movement at all. Do you think this was deliberate, or a missed opportunity?

No, no, of course, it was absolutely deliberate. There’s really no mention of IDPs in it either. No, the pressure UNHCR was under was not to look like they were expanding refugee norms, because once you call someone a refugee, then all the rights of the current regime come with them, which is a good thing, but it’s something states resisted. So because it wasn’t put in the refugee compact, it ended up in the migration compact instead.

In your new book, The Arc of Protection, you outline some key protection principles that are urgently needed to meet the deficiencies of the current interpretation of the 1951 Refugee Convention.What are they?

The first and obvious principle is one of safety. You have to take the people in. Often, that’s referred to in the negative, or sort of backwards: that states are not allowed to return people to places where they’ll face violence and other forms of persecution. That’s because that’s what the legal norm says. We are not making a strictly legal argument, but one based on what we think appropriate political principles would be that would undergird a well-functioning system. So safety would be the first.

The second is an enjoyment of asylum, which is a phrase we take from the Universal Declaration of Human Rights. It really goes to the notion of inclusion. A well-functioning system doesn’t take refugees and put them in camps, or let them live in difficult urban situations, and not find ways for them to take care of themselves through work and through access to other kinds of social protection mechanisms that would allow them to start to rebuild their lives.

The third is solutions – these people can’t go on forever being refugees.

The other two that we add here is a refugee voice, the importance of refugee participation in the crafting of policies and norms. And that’s beginning now with thecreation of several global networks of refugees that have begun to form and seek recognition from UNHCR and the international community, which I think is a really very exciting development.

The last is mobility. This may be the hardest to sell, but to me, the most important and I think one that will become increasingly apparent as the right answer. Most people are able to flee across a border and get safety in a neighbouring country. But then they’re stuck there, they can’t go home. They’re not incorporated into the host society, and they’re not able to move onward. So all the people moving from Syria into neighbouring states who then wanted to move from, say, Jordan or Lebanon, to Germany were treated as asylum seekers in Germany or along the way, even though they had been recognised as refugees already. That’s very strange. You would think that a well-functioning international system would recognise someone as a refugee and then allow them to seek their place of residence, where they could best take care of themselves.

Imagine if people had the right to travel to other states that are members of the international system of refugees: they wouldn’t need assistance, they wouldn’t need the forever kind of care that is given by the humanitarian system because they would take care of themselves. That’s a tall order at the moment, but I think we are beginning to see that kind of movement regionally, but politically, it’s going to be hard to get to, it’s going to have to be done step by step.

How damaging is the loss of moral and practical leadership on refugees by the US? How damaging will it be if the present leadership wins another term in office?

I think it’s devastating. I think nearly everything Trump has done in the immigration area has been harmful, destructive, vindictive, and often vile – for no reason except to appeal to the worst instincts of the American people. That’s not to say there isn’t a serious situation on the southwest border. Many people coming to the country is a problem that President Obama faced as well, and other presidents too, and there are ways of addressing it. But the way is not to detain children. It’s not to take away rights. It’s not to vilify people and call them criminals. That’s not the right way. So it’s been very damaging.

I think the US is a model to the world in many ways, and it’s currently a very unfortunate example. And Steve Bannon, who was responsible for a lot of early Trump policies and views, travelled through Europe and lobbied other states in Europe not to sign the Global Compact for Migration. So that’s a direct impact of Trump policies. But I think Donald Trump has done great damage to the immigration system and the refugee system both in the US and around the world. One good sign is that almost all the policies that Trump has put in place are not approved by a majority of Americans, even if the president has the authority to impose them.

In your view in relation to your subject of refugees and migration, are you pessimistic, optimistic, dystopian, or utopian?

Well, I guess, I’m always optimistic, but frequently disappointed.