Norm-Making in International Refugee Law
Hurwitz, Agnes, Proceedings of the Annual Meeting-American Society of International Law
The year 2011 marked the commemoration of both the 60th anniversary of the Refugee Convention--the cornerstone of the international refugee regime--and the 50th anniversary of the Convention on the Reduction of Statelessness. These important anniversaries provided a good opportunity to reflect on the normative evolution of UNHCR's international protection framework and on the particular challenges it is facing.
There is no doubt that for the last three decades, there has been growing resistance from member states to further strengthen the protection regime. And as a result, noted Erika Feller, UNHCR's Assistant High Commissioner for Protection, "physical insecurity, legal insecurity, socio-economic insecurity and environmental insecurity" continue to be "commonplace." (1)
The challenge for UNHCR was thus to spur renewed interest in norm development among member states, and use the commemorations as an opportunity to build momentum and pressure on states to strengthen the existing legal framework. The approach was primarily to highlight that there were a number of ongoing and emerging protection concerns, which demanded legal responses.
PROTECTION GAPS AND RESPONSES
Faced with the increasing reluctance of states to implement--let alone to agree to further obligations in the realm of refugee protection--UNHCR had to consider new strategies, fully aware that the approach needed to be low-key, yet still ambitious enough to yield significant results.
By highlighting the existence of protection gaps, either longstanding ones or emerging ones, UNHCR sought to demonstrate the need for continuing engagement and work on the implementation of existing or development of new protection instruments and on their implementation. Two areas where protection gaps were identified garnered particular interest: displacement owing to the effects of climate change (an emerging issue), and burden- and responsibility-sharing for refugees (a longstanding concern). (2)
Addressing the linkages between displacement and climate change was potentially risky for UNHCR, and it is fair to say that the initiatives undertaken in 2011 constitute the first steps of what will be a long-haul effort. The first difficulty was conceptual: establishing a link or correlation between climate change and displacement is not straightforward. For this reason, there has been a fear of climate change acting as a "Trojan horse" for a host of other issues, such as "survival migration," to use the term coined by Alexander Betts to describe those who are compelled to leave their country due to severe economic and social deprivation, but cannot meet the requirements of the refugee definition. That being said, a number of studies have shown that displacement related to the effects of climate and environmental change is already a reality, and that climate change will, together with other factors, such as poor governance, conflict, and horizontal inequality, be a significant driver of displacement, as is currently illustrated by the situation in Mali.
The second challenge, related to the first, was institutional. A difficult debate had arisen as regards UNHCR's role in addressing internal displacement resulting from natural disasters. While this question related to the division of labor between UN agencies on internal displacement, the same criticisms about UNHCR's overreaching its mandate and operational capacity would apply with respect to external displacement.
In other words, the approach had to be incremental. Climate-related displacement was first identified as one of the new "patterns of displacement" in the Background Paper on Protection Gaps and Responses of the 2010 High Commissioner's Dialogue on Protection Challenges, which kick-started the commemorations year. (3) The next step was the organization of a closed meeting of experts at the Rockefeller Foundation Bellagio Center. …