At first glance, the norms, rules, principles and decision-making procedures that govern refugee protection appear relatively straightforward. The basis of the refugee regime is the 1951 Convention and its 1967 Protocol. The Office of the United Nations High Commissioner for Refugees (UNHCR) has responsibility for overseeing the regime, and its annual Executive Committee represents the regime's core arena for inter-state decision-making. However, over time, the proliferation of new global governance instruments has led to a range of institutions which exist in parallel or overlap with elements of the regime. Many of these are complementary, such as the European Convention on Human Rights (ECHR) and Convention against Torture (CAT). Since the 1990s, however, new governance arrangements—in areas such as migration and the protection of internally displaced people (IDPs)—exist in parallel to, and partly overlap with, the regime in potentially competitive and contradictory ways.
These new institutions have emerged in the context of the growing politicisation of international migration and have offered states a range of new instruments through which they can meet their interests in relation to the movement of people fleeing persecution, while bypassing the 1951 Convention and UNHCR. This essay argues that the proliferation of these new parallel institutions is a significant factor in explaining recent change in the international politics of refugee protection. It suggests that this competitive institutional environment has contributed to changing the role of UNHCR and has had a potentially negative effect on the quality of protection available to refugees. Institutional proliferation has had these consequences by creating opportunities for states to engage in regime shifting, switching the venue for conversation about refugees to institutions that focus also on migration and security governance. As a result, while the formal refugee protection rules and the UNHCR's mandate stays largely the same, the most relevant politics for refugee protection occurs in parallel domains.
The New Institutional Proliferation
The main actors in the refugee regime have generally been regarded to be UNHCR and states. UNHCR has existed to monitor states' compliance with the 1951 Convention on the Status of Refugees. Overlapping and parallel institutions with a human rights orientation have tended to be complementary, reinforcing the protection standards of the regime. Regional instruments such as the OAU Convention and the Cartagena Protocol were explicitly conceived as complements to the 1951 Convention. Human rights treaties, in particular article 3 of the ECHR and Article 3 of the CAT, have also provided sources of what has been referred to as “complementary protection” (i.e., legal sources of refugee protection that come from outside of international refugee law) for refugees fleeing persecution.Footnote 1
However, in contrast, a new form of potentially contradictory institutional proliferation has taken place since the 1990s. Led by a renewed state interest in migration control, international institutions have begun to emerge in two areas that were previously unregulated at the global level: international migration and internal displacement. These new institutions have been created by states in response to the increase in South-North migration since the 1980s and the growing securitisation of asylum and immigration in the 1990s and early 2000s. Although neither migration governance nor IDP governance have a direct institutional relationship to refugee protection, the creation of these parallel institutions has implications for the politics of refugee protection.
In the first instance, there has been a proliferation in institutions purporting to regulate international migration.Footnote 2 Despite the absence of formal multilateral governance in this area, a range of informal, regional and inter-regional governance structures have emerged as states have recognised international migration to be of growing political importance and have recognised that migration can only be addressed through international cooperation. These new institutions have included the European Union's common Justice and Home Affairs (JHA) policy, which has included an attempt to develop a common asylum and immigration policy;Footnote 3 the Intergovernmental Consultations on Migration, Asylum and Refugees (the IGC), established by a group of like-minded states with a secretariat in Geneva as the basis for informally discussing asylum and immigration policy outside of traditional multilateral forums such as UNHCR;Footnote 4 the Global Commission on International Migration (GCIM) and the new multilateral Global Forum on Migration and Development (GFMD), for example. Alongside these emerging structures, the International Migration Organization (IOM) has played an increasingly prominent role in relation to global migration governance, despite existing outside of formal UN structures. These emerging structures have mainly existed in parallel to the global refugee regime, but with some significant elements of overlap, insofar as actors such as the EU, IGC, and IOM have addressed asylum as a migration issue. In particular, the new migration institutions overlap with the refugee regime insofar as they have influence refugees' access to spontaneous arrival asylum.
In the second instance, a new institutional framework for addressing the issue of internally displaced persons (IDPs) has emerged since the 1990s.Footnote 5 This new framework is based upon the creation of the position of the UN Secretary General's Special Representative for IDPs and the 1997 Guiding Principles of Internal Displacement, which represents a consolidated summary of the human rights law and international humanitarian law standards relevant for IDPs. This shift towards a new multilateral framework for IDPs was based partly on the recognition that in contrast to refugees, internally displaced people rarely received access to international protection. However, it was also driven by a migration control agenda within which many Northern states have identified the “internal flight alternative” as a means to ensure that individuals fleeing persecution do not need to leave their countries of origin but can receive protection within their own states. The internal flight alternative represents one way in which the new IDP regime overlaps with the refugee regime. This is because it implies that in situations in which would-be refugees are able to find protection within their own state they may be refused asylum and returned to their country of origin. The way in which the human rights, migration, and IDP regimes overlap with the refugee regime is illustrated in the diagram below.
The refugee regime complex
Note: Diagram illustrating the main actors and institutions in the global refugee regime and how the regime exists in parallel to and partly overlaps with the migration, IDP and human rights regimes. The intersections of the Venn diagram illustrate some of the ways in which the refugee regime overlaps with other regimes.
How International Regime Complexity Alters the Politics of Refugee Protection
Although the new institutional proliferation has taken place in relation to international migration and IDPs rather than refugees, it has nevertheless had significant implications for the politics of refugee protection. Despite UNHCR consistently arguing that “refugees are not migrants,” the fact that refugees move across borders and refugees' ability to seek protection is dependent upon their transnational mobility, governance that relates to human mobility has direct relevance for asylum and refugee protection. Aside from this practical relationship, the creation of parallel institutions in relation to international migration and IDPs has been relevant to refugee politics for two principal institutional reasons.
The parallel institutions enable states to circumvent UNHCR and the 1951 Convention. International refugee law only imposes obligations upon states once refugees reach their territory; if they can find alternative ways to avoid refugees reaching their territory then they can avoid these legal obligations. Asylum destination states in the North have been able to use the new international institutions relating to migration control or IDPs to keep refugees from reaching their territory, thereby averting their obligations towards refugees. For example, states have increasingly used IOM in service provider roles that would once have been the domain of UNHCR including refugee return and the care and maintenance of asylum seekers and refugees. The IOM is preferred because it is outside of the UN framework and therefore unencumbered by the human rights obligations and state scrutiny the UNHCR faces.
The IGC and the EU Council of Ministers have been used by states as forums for inter-state dialogues on refugee issues, instead of using the UNHCR's Executive Committee. As a result, new mechanisms for addressing asylum and refugee protection get decided without UNHCR involvement. For example, EU states have used the IGC and the IOM to develop innovations such as the offshore processing of asylum claims. States have also increasingly attempted to use the institutional mechanisms relating to IDP protection as a substitute for refugee protection. In Sudan, Sri Lanka, Afghanistan, and Burundi, for example, states have used the concept of internal flight alternative.
A de facto result of regime shifting is that the most relevant political decisions regarding refugee protection are increasingly made in the context of migration and security discussions. States have rarely been interested in refugee protection for altruistic reasons. During the Cold War, the U.S. and Western European states offered asylum to refugees fleeing Communism as a means to discredit Communist regimes, and they contributed to supporting refugees who fought Communism in the proxy conflict of the developing world. In the post-Cold War era, Northern states became primarily concerned with managing migration. The responsibility for the asylum and refugee protection agenda has been shifted from state departments to governmental units that deal with migration and security issues such as justice and home affairs. In the post 9/11 era, refugee concerns have been subordinated to security concerns. These shifts in state concerns explain both the creation of the new international institutions for migration and security issues, and how refugee and asylum issues have become subordinated in these new institutions.
While the formal rules and mandate regarding refugee protection have not changed significantly, increasingly UNHCR have recognised that in order to engage in the politics of refugee protection it needs to be an active participant in debates that go beyond the immediate scope of the refugee regime. It has thereby become actively engaged in wider multilateral forums such as the Global Forum on Migration and Development, regional discussions such as the EU debates on Justice and Home Affairs, and the wider UN debates on humanitarian assistance and IDP protection. As it has done so, UNHCR has adjusted its strategy, in ways discussed in the next section.
Consequences for Refugee Protection
The new migration institutions have undermined the quality of refugee protection insofar as they have enabled states to use international institutions to prevent spontaneous-arrival asylum seekers acquiring access to the territory of states in which they would otherwise claim asylum. For example, through regional cooperation, the EU has developed Frontex, the EU's border control agency, which engages in military patrol of attempts by migrants to acquire access to the EU's Southern or Eastern borders. At the international level, IOM provides services to European states that enable them to limit the access of asylum seekers crossing from Sub-Saharan Africa to the EU via the Maghreb. Many of the new border control mechanisms have been identified as being inconsistent with the notion that refugees should not be forcibly returned to countries in which they face a well-founded fear of persecution (non-refoulement).
The new institutional framework on IDP protection has watered down the quality of refugee protection insofar as it has been used by states as a tool of containment for would-be refugees, provided a justification for forcibly returning refugees to their country of origin, and has diverted resources from refugee protection to IDP protection. A number of states have instrumentalised the notion of IDP protection as a means to limit the outflow of refugees. Past examples of this include the creation of safe zones or humanitarian corridors in Bosnia, Iraq, and Somalia.Footnote 6 Although the IDP regime may have the potential to be complementary of refugee protection, many Northern states have financially and institutionally prioritised IDP protection over refugee protection because they have perceived in-country protection to be a substitute for refugee protection.
Perhaps most significantly, however, the new parallel institutions have contributed to changing the work and mandate of UNHCR. In order to compete with the other emerging institutions and to “make itself relevant” to states, UNHCR has gradually expanded into the areas in which it faces institutional competition. Since 2000, UNHCR's work has grown to incorporate a greater focus on both migration and IDP protection. Its traditional mandate was confined to providing protection and durable solutions to refugees. In response to the wider competitive environment, it has brought consideration of the issues of both international migration and IDPs within the organization and adapted its work in ways that have potentially perverse consequences for refugee protection.
In the early 2000s, UNHCR has increasingly recognised that states respond to refugees in the broader context of international migration and has tried to engage in the politics of migration.Footnote 7 The new migration control agenda contributed to a widely recognised “crisis of asylum,” with Northern states increasingly preventing refugees' access to their territories, while Southern states received inadequate international support for the refugees they hosted. Recognising that the 1951 Convention was not adequate to address these concerns, UNHCR conceived the Convention Plus initiative in 2003.Footnote 8 Its aim was to supplement the aspects of refugee protection inadequately addressed by the Convention. The initiative attempted to facilitate a “grand bargain” on the allocation of responsibility for refugee protection, whereby Northern states could meet their interest in limiting irregular migration through contributing to refugee protection in the South. The initiative thereby attempted to use issue-linkage to connect Northern states' interests in migration to refugee protection.Footnote 9 Central to this initiative was the notion that “protection in the region of origin” could serve as a substitute for spontaneous arrival asylum and an implicit recognition that so long as Northern states funded protection in the South they could legitimately control immigration. As I argue elsewhere, complexity offered UNHCR an opportunity to engage in issue-linkage as a means to channel states' wider interests in other issue-areas into a commitment to refugee protection.Footnote 10 While this has not always worked, UNHCR has been able to use institutional connections between refugee protection and other issue-areas as a basis for claiming that protection is related to states' higher-order concerns in parallel domains such as migration and security. However, by recognising that Northern states do have a valid migration control agenda and trying to channel this into a commitment to protection in the region of origin, UNHCR has legitimated many of the control mechanisms that undermine Southern refugees' access to protection in the North.
In 2005, UNHCR also formally took responsibility for IDP protection. After many years of playing an ad hoc role in relation to IDP protection, UNHCR agreed to take on formal institutional responsibility for protection within an interagency “cluster approach” for addressing the needs of IDPs. High Commissioner Antonio Guterres proclaimed that henceforth UNHCR could become the UN's protection agency rather simply its refugee protection agency.Footnote 11 Yet, without additional staff or significant additional funding it is not clear how taking on formal responsibility for IDPs will affect UNHCR's ability to meet its core refugee protection mandate. The experiences of the 1990s in situations such as Bosnia and Iraq certainly suggests that having the same organization responsible for both functions can lead to contradictory outcomes, undermining refugees' access to protection by imposing upon them an internal-flight alternative. In Bosnia, UNHCR's role in providing protection to IDPs in the so-called safe havens served not only to provide inadequate protection to IDPs but also to deny them access to asylum in other states.Footnote 12 The danger for UNHCR is that, as it enters new policy arenas and takes on a greater role in areas such as migration and IDP protection, it risks diluting or undermining its original refugee protection mandate and its ostensibly “non-political character.” However, the danger of not engaging with the new competitive institutional environment is that the organization and the refugee regime risk irrelevance.
This suggests that regime complexity represents a potentially important factor in influencing change in the role and strategy of IOs. As the institutional environment became increasingly competitive, UNHCR chose to adapt in order to maintain its relevance in the context of state regime shifting. In their work on IOs, Barnett and Finnemore also use UNHCR as a case study for exploring the process of IO adaptation and change.Footnote 13 They argue that UNHCR has reinterpreted its mandate to become an organization more focused on refugee repatriation than on refugee protection. They note specific ways in which the mandate gets reinterpreted. They attribute much of this change to the organization's own internal dynamics—or organizational pathologies. Contra Barnett and Finnemore, this article suggests that an important factor in driving change in UNHCR's role and mandate has been regime complexity. However, insofar as UNHCR's response to the new institutional competition has led to perverse consequences that flow from internal choices, the explanation is compatible with and builds upon Barnett and Finnemore's explanation of IO adaptation and change.
Conclusion
Concerned about irregular migration as a threat to security, Northern states have increasingly tried to avert their legal obligations to accept refugees who reach their territory through policies aimed at limiting asylum seekers' access to their territory. In this context, they have created new institutional structures in relation to migration and IDPs, which exist in parallel to the refugee regime. These emerging regimes have some areas of overlap with the refugee regime. For example, both have implications for refugees' access to spontaneous arrival asylum channels: the IDP regime offers an internal flight alternative to protection in another country, which is increasingly considered in states' assessment of asylum claims; the migration regime has implications for refugees' mobility and hence access to spontaneous arrival asylum.
The new institutional proliferation has affected states' strategies, enabling them to bypass UNHCR by using the alternative regimes to limit the arrival of asylum seekers onto their territory, and thereby escaping their obligations under the 1951 Convention without overtly violating its central tenets. States prefer the parallel venues because they can more easily address their migration and security concerns. Without the new institutions there would have been fewer means for Northern states to coordinate so as to limit asylum seekers' ability to reach the borders of their territory. In turn, the institutional proliferation has affected UNHCR's strategy as it has struggled to maintain its relevance. It has led the UNHCR to adapt its mandate to incorporate elements of these wider issues, and to engage in the politics of other regimes and to use issue-linkage as a strategy for channelling states' wider concerns with migration and security into a commitment to refugee protection. The danger with this shift in UNHCR's role is that, as it competes with the new institutional alternatives, it compromises its core mandate and legitimates the states' strategies that undermine refugees' access to protection.
The analysis of the effects of institutional proliferation on the refugee regime offers two further implications for the framework set out by Alter and Meunier in this edition. On a methodological level, it highlights the challenge of attributing causality to institutional proliferation. The new institutional proliferation has taken place in the context of growing state concerns with migration and security. These concerns have been led by trends such as globalization and the post 9/11 era. This begs the question of the extent to which the underlying politics or the resulting institutional proliferation are driving the change in refugee politics. In reality, it appears to be both, demonstrating the difficulty in bracketing where overlap comes from; the causes and consequences of overlap may be closely intertwined. On a conceptual level, the case study highlights the way in which institutional proliferation may create opportunities for issue-linkage. One of the key ways in which UNHCR has attempted to turn the new institutional competition to its advantage has been to use overlap as a basis on which to appeal to states' wider interests in migration and security and to claim that these have a relationship to refugee protection. As the most relevant politics for refugee protection has been relocated away from the refugee regime, so UNHCR has had to engage in the politics of other regimes as a means to advocate for refugee protection.
