‘The Arc of Protection: Reforming the International Refugee Regime’

T. Alexander Aleinikoff, Director of the Zolberg Institute on Migration and Mobility, and Leah Zamore, director of NYU’s Center for International Cooperation’s Humanitarian Crises program, have co-authored a new book on reforming the international refugee regime.  

The Arc of Protection: Reforming the International Refugee Regime, published by Stanford University Press, argues that the international refugee regime is fundamentally broken. Designed in the wake of World War II to provide protection and assistance, the system is unable to address the record numbers of persons displaced by conflict and violence today. States have put up fences and adopted policies to deny, deter, and detain asylum seekers. People recognized as refugees are routinely denied rights guaranteed by international law. The results are dismal for the millions of refugees around the world who are left with slender prospects to rebuild their lives or contribute to host communities. 

The Arc of Protection adopts a revisionist and critical perspective that examines the original premises of the international refugee regime. Aleinikoff and Zamore identify compromises at the founding of the system that attempted to balance humanitarian ideals and sovereign control of their borders by states. This book offers a way out of the current international morass through refocusing on responsibility-sharing, seeing the humanitarian-development divide in a new light, and putting refugee rights front and center.

The introduction to The Arc of Protection is available to read at this link. To purchase the book, go to Stanford University Press. An overview of the book’s contents follows.

Chapter 1: Introduction

A sophisticated international refugee regime has arisen since the unprecedented displacement crisis of the postwar era propelled the European refugee to the forefront of global humanitarian concern. An arc of protection for refugees has since extended international support to new categories of displaced persons, and new international actors have arisen to take on the tasks of fashioning responses and finding solutions to refugee situations the world over. Yet today, the international refugee regime appears to be fundamentally broken. Fences have gone up in Europe as boats have gone down in the Mediterranean Sea. From Uganda to Bangladesh, tens of millions of refugees are living in conditions of intolerable deprivation, with no solutions in sight. This chapter underscores the extent of the challenge and the necessity of reforms that move forward rather than backward along the arc of protection.

Chapter 2: The Inconvenient Refugee

The international refugee regime has evolved in four fundamental ways since its origins in postwar Europe. First, the concept of “refugee” has been expanded through legal protocols and creative lawyering. Second, states in the north have created an “architecture of repulsion” that contains the vast majority of these “new” refugees in just a handful of struggling developing countries. Third, the protections provided to refugees have been steadily diluted: a regime charged with protecting the welfare and labor rights of (European) refugees has transformed into a system geared mainly toward the provision of short-term humanitarian aid in southern host states. Fourth, displacement has come to be viewed as a long-term development challenge as well as a humanitarian crisis, but the development model pursued in host states has frequently been an inequitable and impoverishing one. The chapter questions whether recent reform efforts are up to the task of confronting these trends.

Chapter 3: The International Protection Regime

International protection is the core concept of the international refugee regime. The modern standard account of the term presents it as a “surrogate” for the protections denied by a home state in the home state. This chapter provides an alternative reading: international protection is necessary because a refugee is unable to avail herself of the protection of her home state while she is residing in another state. If it is a surrogate for anything, it is the denial of refugees’ rights by the host state and the failure or refusal of the home state to intervene diplomatically and politically. This rereading has important implications. Most fundamentally, it clarifies that the aim of international protection is not to substitute for rights denied at home but to remedy the exclusions and deprivations—the “second exile”—that refugees experience abroad.

Chapter 4: Principles of Protection

At least in theory, the provision of international protection revolves around three core commitments: offering safe haven to forced migrants who have escaped from violence and other atrocious conditions that make their lives at home intolerable; enabling these refugees to rebuild their lives or providing for their welfare when they are unable to do so; and helping refugees exit from the category of the uprooted. This chapter offers new interpretations of these commitments that expand and strengthen them. It also adds two additional commitments: enhancing the ability of the displaced to pursue opportunities for economic, educational, and social advancement through onward movement; and ensuring that refugees have a role in the development of international and domestic responses to their displacement. Recognizing these commitments gives a dynamic reading to the concept of international protection, and one distinct from the common view that the core concern of international protection is non-refoulement and international humanitarian assistance.

Chapter 5: For Whom Is International Protection Warranted?

Scholars have developed a number of philosophical positions on the question of “who is a refugee?” Some attempt to provide a justification for the UN Refugee Convention’s narrow (if malleable) definition; others seek to expand the definition to any person who lacks the protection of their home country. This chapter adopts the concept of necessary flight and suggests that all persons forced to leave their homes because life there has become intolerable merit a response from the international community. Notably, this is a far larger class of persons than presently covered by the convention.  It recognizes that persons who flee their home states do so for a cluster of reasons and that legal (and moral) standards that seek to identify a single reason (e.g., fear of persecution) are artificial and under-inclusive.

Chapter 6: Reform

Today, more displaced persons are being assisted by more actors in more ways and for longer periods of time than at any point in history. It is thus an extreme irony that the system is largely in disarray. Various proposals for reform have emerged in recent years. This chapter leaves aside proposals that would move the system backwards along the arc of protection—that would cut back on the definition of refugee, adopt encampment policies, or restrict established refugee rights. It examines instead what we label the New Liberal Consensus on reform of the refugee regime—and shows how it, too, has the tendency to serve as a maintainer of an intolerable status quo. In its stead, the chapter offers a series of proposals that, we think, are capable of addressing the underlying challenges of the international protection regime.