Refugees and their rights

By Gabriele Koehler

Gabriele Koehler
Gabriele Koehler is a development economist affiliated with UNRISD as a Senior Research Associate. She serves on the boards of Women Engage for a Common Future (WECF), the UN Association of Germany (DGVN), and is a member of the UNICEF National Committee, Germany. She is also a Distinguished Fellow of the ICSW.

The enormous challenges of flight
People have been fleeing their home village or home country throughout recent history. Individuals and communities are forced to flee because of political persecution, torture and rape, conflict and war, and because of poverty and social exclusion. These factors are increasingly intertwined with the devastating impacts of climate change.

Three figures make the urgency and the existential brutality of the situation clear: In 2015, the recorded number of internally displaced persons, asylum seekers and refugees reached 66 million, having increased steadily throughout the 1990s. This is the largest number since the end of World War II. 20 new displacements take place every minute. In 2014, at least 21,000 refugees and migrants died worldwide in connection with their displacement (all data in this article from: UNHCR 2017; UNICEF 2017; CARE International 2018, unless otherwise referenced).

Over 22 million persons are currently recognized refugees. Among these international refugees are 5.5 million Syrians, 2.5 million Afghans, 1.5 million South Sudanese and 1 million Somalians. Children make up almost half of the refugee population; in 2016, at least 75000 children were “unaccompanied” – separated from their family and fleeing on their own.

The majority of forcibly displaced persons remain in their country of origin – an estimated 40 million persons live as internally displaced people (IDPs). Others cross into a neighbouring country. An estimated 6 million Syrians live in other regions of their country; 2 million people have fled from Afghanistan to Iran over the past decades. The crises in Burundi, the Central African Republic, Mali and the Lake Chad Basin have driven nearly 1.3 million children, women and men into neighbouring countries.

This means that more than 80 per cent of the global refugee and internally displaced population live in low- or lower-middle income countries. Turkey currently hosts 2.9 million refugees, Pakistan 1.4 million persons, Lebanon 1 million, Iran and Uganda almost 1 million, and Ethiopia 800 000. Bangladesh in 2017 received 650 000 Rohingya people - many of them children - fleeing persecution and possibly ethnic cleansing in Myanmar.

Contrary to common perceptions, flight becomes a long-term status: the average duration of stay in a refugee camp is 17 years . Refugees from 60 years of ethnic strife in Myanmar have lived precariously in neighbouring Thailand for decades; the largest camp of Karenni Myanmarese houses 40,000 people on the Thai–Myanmar border ( ). Kakuma and Dadaab  in Kenya, the largest refugee camps globally, with half a million inhabitants, were established in 1991/92 (Rawlence 2015). Two million Afghanis have lived in Iran and Pakistan for the past three decades. 100,000 Bhutanese refugees - 14% of the entire Bhutanese population - have been sheltered in Nepal, one of the poorest countries of the world, for 20 years.

Only recently, though, has the plight of these extremely vulnerable persons become a globally acknowledged theme. Arguably, this is because larger numbers of asylum seekers are attempting to reach or have reached the wealthy countries, and because the media have become more sensitive to the most visible, most extreme tragedies of flight: 2726 persons drowned in the Mediterranean Sea in 2017.

Challenges and perceptions in host communities
From a host country perspective, there are a number of concerns regarding refugee communities (based on Koehler 2016).

One set of issues is economic. In almost all countries, there is an economic prejudice that refugees could steal work opportunities from locals, or drive down wages and employment standards. Another economic issue is the cost of accommodating refugees with dignity: what share of a country’s gross domestic product (GDP) and fiscal budgets will that require? In low-income countries, what will the UNHCR and other UN agencies take on in terms of support for refugee and IDP populations – their housing, food and nutrition, schooling and health services, and last but not least, incomes? In rich countries: will parliaments increase refugee-related expenditures by depleting the nation’s funding for social assistance for citizens and social insurance contributors?

A second type of issue is social. Social issues relate to the trauma burden borne by refugees when they reach the asylum country. Will their trauma make it difficult for them to adapt to the new home country and perhaps create social conflicts because they have wounded souls? Will the refugees acclimatize culturally and adapt to the societal rules, norms and customs of the host country? This is a legitimate question in cases when refugees come from a socio-cultural background which systemically oppresses women and girls and does not acknowledge human rights. Will they live in specific areas, creating socio-cultural ghettos?

A third set of issues relates to the political. If migrants and refugees come from countries suffering from protracted civil war, terrorism, and systemic exclusions, there is a fear that they will ‘import’ violent forms of conflict resolution. This has been a concern in recent years in Europe, where a few individual refugees have been affiliated with the Islamic State of Iraq and Syria (ISIS) and other terrorist groups.

These issues need to be acknowledged and addressed, of course, which requires new types of expertise in host countries and considerable technical and financial resources. Social policy expenditures need to expand in order to accommodate the health, education and training, housing, and social protection requirements and rights of ‘old’ and ‘new’ residents. It is equally important to improve communication and interaction between experts and policy makers, refugees, and the general public. Public information efforts must explain the need for coherent, generous, rights-based and inclusive social policy.

At the national level, many host countries have national legislation on the rights of migrants and asylum seekers in place, as a commitment. However, an increasing number of high-income countries are trying to renege or even abandon their commitment to human rights and social justice and are at a loss for a concerted response to fulfil the right of asylum. After a progressive interlude in the early autumn of 2015, restrictive practices have made entry into the EU area extremely difficult. As the United Nations High Commissioner for Refugees (UNHCR) has pointed out, the European Community is violating its own laws by refouling refugees and by not granting refugees their rights once they reach the EU.

In the United States, efforts are underway to build a wall between the United States and Mexico designed to keep Latin American migrants and refugees out of the country, and the number of asylum seekers that are to be accommodated has been decreased. In 2013, Australia introduced ‘Operation Sovereign Borders’, using the military to control asylum operations. Even when asylum is recognized, implementing procedures tend to be very restrictive (Razum and Bozorgmehr 2016).

Some policy responses
Yet there are glimmers of hope. (based on Koehler 2016). Looking at international soft law (see Sepúlveda Carmona 2017), there are many progressive approaches to the rights of migrants and refugees. The Universal Declaration of Human Rights (1948) – celebrating its 70th anniversary this year – with its right to asylum (article 14) is the first platform on which to draw. The Geneva Refugee Convention of 1951 and its Protocol on the rights of refugees (1967), which 145 countries have ratified, set down universal normative principles specifically regarding the situation of refugees .

There are other norms that most UN member states have agreed to. The principle of universal access to health, education, and a minimum income and social security is integral to the International Covenant on Economic, Social and Cultural Rights (ICESCR). If one considers rights as indivisible and universal, the ICESCR can be tapped to claim rights for refugees. In an exceptional policy approach, Thailand, for example, gives access to their national health insurance system, for a fee, to registered migrants, who in some cases include refugees (Koehler 2017), and Uganda, a low-income least developed country, is allowing refugees to work.

The Convention on the Rights of the Child (CRC) (1989/1990), ratified by all countries but two, is universal in its approach. It stipulates that governments must ‘respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s national origin’. This means that all children in situations of flight, as well as migrant children, are entitled to enjoy all rights guaranteed by the CRC, including wellbeing, education, health, privacy, leisure, and an opinion of their own, and governments are the duty bearers for this. A recent innovative approach comes from Germany, where UNICEF and the German Ministry of Family Affairs, together with a host of civil society actors, have produced guidelines on the rights of refugee children in Germany (Federal Ministry of Family Affairs, Senior Citizens, Women and Youth, Germany, and UNICEF 2016) .

Another key reference is Recommendation 202 of the International Labour Organization (ILO 2012) on Social Protection Floors (2012). It reaffirms that ‘the right to social security is a human right’ and commits to the principle of ‘universality of protection’, albeit with a notion of gradual realization. In article 6, it stipulates that governments ‘should provide the basic social security guarantees referred to in this Recommendation to at least all residents and children’. This implies that the four guarantees of the Social Protection Floor apply to migrants and refugees. The four guarantees are (a) access to a nationally defined set of goods and services constituting essential health care, including maternity care, that meet the criteria of availability, accessibility, acceptability, and quality; (b) basic income security for children, at least at a nationally defined minimum level providing access to nutrition, education, care, and any other necessary goods and services; (c) basic income security, at least at a nationally defined minimum level, for persons in active age who are unable to earn sufficient income, in particular in cases of sickness, unemployment, maternity, and disability; and (d) basic income security, at least at a nationally defined minimum level, for older persons (article 5) (ILO 2012). This is a promising normative policy advance and now needs to be made a reality, of course for citizens in their respective home countries, but also for the 66 million people who are displaced and thereby dislodged from their inherent rights.

The much-celebrated UN 2030 Agenda for Sustainable Development – Transforming Our World (United Nations 2015), adopted by the 195 member states of the UN at the General Assembly in 2015, commits member states to empower refugees and migrants, and commits to ‘take further effective measures and actions ... to remove obstacles and constraints, strengthen support and meet the special needs of people living in areas affected by complex humanitarian emergencies and in areas affected by terrorism’ (paragraph 23). The 2030 Agenda does not, however, speak of the rights of refugees.

In follow up, and perhaps as a response to criticism from civil society and the UN agencies dealing with human rights and with migration and flight that the 2030 Agenda contained no specifics on those subjects, in 2016, the UN convened a Humanitarian Summit in Istanbul and a Summit on Refugees and Migrants in New York. The Istanbul conference developed a set of rights standards for all displaced persons, and declared a policy preference for cash transfers instead of rations and other handouts in kind, so as assure the dignity and decision making power of these communities.

The New York summit introduced a new stream of consultations and negotiations: UN member states are working on universal policy documents to be adopted this year and next (United Nations 2016; UNICEF 2018). Hopefully, the emerging declarations will reconfirm not only the well-established body of international human rights law, but also recognize new reasons for flight – such as the accelerating negative impact of climate change. And then usher in new action.