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Averting Forced Migration in Countries in Transition -- Susan Martin
Background Paper prepared for the Organizing Meeting of
Cooperative Efforts to Manage Emigration
Nature of Forced Migration 3
New Contexts for Addressing Forced Migration 4
Options to Address Forced Migration from Countries in Transition 5
This background paper discusses the nature of forced migration, pointing out that the end of the Cold War has produced new pressures and new opportunities to address these flows. While extremism, particularly rampant nationalism, has provoked massive forced migration in many parts of the world, the changing geo-political relations has also led to peace settlements in some countries and humanitarian intervention to reduce suffering in others.
Addressing forced migration pressures in countries in transition requires comprehensive policy approaches. Four types of best practices are considered in this paper:
Mechanisms to ameliorate the causes of forced movements, including the role that expatriate communities can play in strengthening the rule of law and respect for human rights, particularly minority rights;
Although just stated in simple terms, distinguishing between voluntary and forced migrants can be difficult. Voluntary migrants may feel compelled to seek new homes because of pressing problems at home; forced migrants may choose a particular refuge because of family and community ties or economic opportunities. Moreover, one form of migration often leads to another. Forced migrants who settle in a new country may then bring family members to join them. Voluntary migrants may find that situations change in their home countries, preventing their repatriation and making them into forced migrants.
Despite the difficulty of categorising different types of migrants, the process is more than an exercise in semantics. Countries have different responsibilities towards different types of migrants. For example, more than 130 countries have signed the UN Convention Relating to the Status of Refugees and recognise that they are obliged not to return refugees to where they have a well-founded fear of persecution and to provide assistance and protection to refugees whom they admit. No similar legal obligation extends towards other international migrants although international human rights law, national laws and International Labour Organisation conventions relating to conditions of recruitment and employment protect their rights in destination countries.
It is the complicated relationship between voluntary and forced migration that challenges receiving States when they try to distinguish between refugees and other migrants. Many governments have established sometimes elaborate and costly asylum adjudication procedures to make these determinations. In some cases, where other immigration avenues are restrictive, these procedures are the only or principal means through which migrants are able to gain admission, regardless of their reasons for emigration or the circumstances they would face on return. Fearing uncontrolled migration, States have imposed such mechanisms as visa requirements and carrier sanctions to limit access to their territory. Too often, however, these mechanisms fail to make distinctions between refugees and other migrants and limit the protection afforded to persons who, failing to find asylum elsewhere, will find themselves endangered. In some cases, they are also self-defeating, as would-be migrants, including bona fide refugees, turn to increasingly more sophisticated smuggling and trafficking operations that are able to circumvent the immigration controls. A vicious cycle then develops, with governments imposing new restrictions while smugglers find new ways to get around them.
In recent years, governments and the UN High Commissioner for Refugees have begun to explore ways to address forced migration pressures at their source and in regions of origin. The European Union has established a High Level Working Group that has developed plans to address the causes of migration in the principal source countries of migration to Europe. The High Level Working Group was to engage in a joint analysis of the causes of influx, including the human rights situation in the subject-country; an assessment of the effectiveness of aid and development strategies; identification of the needs for humanitarian and rehabilitation assistance, and the ways to assist reception of displaced persons in the region; information gathering on re-admission agreements, possibilities for safe and voluntary return; identification of areas of and means for cooperation with UNHCR and NGOs; and preparation of proposals for joint measures in the field of asylum and migration. Targeted countries include Morocco, Afghanistan/Pakistan, Iraq, Sri Lanka, Albania and its neighboring countries, and Somalia.
With the exception of Morocco and Albania, these countries differ significantly from the ones chosen for this study. They are in the midst of civil conflict and/or have no functioning government. By contrast, this project focuses on countries already in transition to democratic, peaceful societies. CEME recognizes, however, that many of the countries that are now sources of migration to Europe and North America have only recently emerged from years of repression, conflict and autocratic government. As countries in transition, the potential for forced migration remains of real concern. Also, countries that have emerged from conflict, but have not yet established working democracies, face significant challenges when called upon to reintegrate migrants. This is particularly the case when addressing return of ethnic or political minorities. Dealing with the potential for forced migration is complicated still further by the economic uncertainties in many post-conflict countries that lead migrants to seek economic opportunities in more developed countries.
It must be emphasized that options for addressing forced migration in countries or regions of origin are by no means substitutes for well-functioning asylum systems. However, they do provide additional mechanisms for protecting and assisting those who, in their absence, may seek admission to countries in North America and Europe. This paper outlines some of these approaches for further consideration by the Cooperative Efforts to Manage Emigration project. The first section describes more fully the nature of forced migration today. The next section discusses some of the new contexts for addressing forced migration globally. The sections that follow outline a range of approaches to address the potential for forced migration, including preventive actions, in-country and regional protection mechanisms, and return and reintegration options.
Nature of Forced Migration
Refugees have a special status in international law. A refugee is defined by the 1951 UN Convention Relating to the Status of Refugees as "a person who, owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." Refugee status has been applied more broadly, however, to include others persons who are outside their country of origin because of armed conflict, generalised violence, foreign aggression or other circumstances which have seriously disturbed public order, and who, therefore, require international protection.
Environmental degradation and natural disasters uproot another type of forced migrant. Unlike the refugees described above, environmental migrants do not need protection from persecution or violence, but like refugees, they are unable to return to now uninhabitable communities. Most environmental migrants move internally, some relocating temporarily until they are able to rebuild their homes and others seeking permanent new homes. Some environmental migrants, however, cross national boundaries.
The specific environmental factors that precipitate movements vary. Mass migration may result from such natural phenomena as earthquakes, volcanic eruptions, flooding, hurricanes and other events that destroy housing, disrupt agriculture, and otherwise make it difficult for inhabitants to stay within their communities, particularly until reconstruction is completed. For example, periodic floods in Bangladesh have uprooted hundreds of thousands of persons. Hurricanes Georg and Mitch provoked massive displacement in the Caribbean and Central America, respectively While most of these flood victims are internally displaced, the recurrent environmental problems provide an impetus for external movements as well..
Manmade disasters also precipitate mass movements. Large-scale industrial and nuclear accidents, such as those that occurred in Bophal and Chernobyl, can displace thousands of people within a very short period. Other manmade environmental problems lead to more gradual movements. Global warming, acid rain, pollution of rivers, depletion of resources, soil erosion and desertification all hold the potential to uproot millions of people who can no longer reside or earn a living in their home communities. While some of this environmental degradation may be reversible, the most severe problems will require sustained attention and significant resources for reclamation. In the meantime, both internal and international migration can be expected.
New Contexts for Addressing Forced Migration
The Cold War also made all but impossible some of the solutions to refugee crises, whether defined as attacking root causes or promoting return of refugees. With the end of the Cold War, new opportunities emerged. Many decades-old civil wars came to an end. Democratisation and increased respect for human rights took hold in numerous countries throughout the globe. As a result, repatriation became a possibility for millions of refugees who had been displaced for years.
One of the most significant changes in recent years has been in the willingness of countries to intervene on behalf of internally displaced persons and others in need of assistance and protection within their home countries. Classic notions of sovereignty, which formerly precluded such intervention, are under considerable pressure. International human rights and humanitarian law have growing salience in defining sovereignty to include responsibility for the welfare of the residents of ones territory.
Intervention may be expected when the actions of a sovereign state threaten the security of another state. What is new is the recognition that actions that prompt mass exodus into a neighbouring territory threaten international security. In a number of cases, beginning with Resolution 688 that authorised intervention in northern Iraq, the Security Council has determined that the way to reduce the threat to a neighbouring state is to provide assistance and protection within the territory of the offending state.
The changing geo-political scene is a two-edged sword, however. The need for humanitarian intervention also is linked to the end of the Cold War. Rabid nationalism has replaced communism in some countries, while others have so destabilised that no government exists to protect the civilian population. Addressing these new situations is made all the more challenging now that the ideological supports for generous refugee responses have unravelled. That the principles of asylum and non-refoulement (non-return to places of persecution) appear to be under growing attack in Europe and North America is one manifestation of this issue. Further, as the failure of the international community to protect the so-called safe havens in Bosnia showed, humanitarian interests alone are often an insufficient substitute for political will.
Options to Address Forced Migration from Countries in Transition
Ameliorating the Causes of Unauthorised Migration: Ultimately, reducing the push and pull factors is the most sensible way to address increasing migration pressures. Peace, respect for human rights, and reduction in income differentials between rich and poor countries are the best long-term solutions to uncontrolled migration. Given the large number of people fleeing internal conflict and insecurity, and as Sadako Ogata said before the Carnegie Commission on Preventing Deadly Conflict, UNHCR "has an obvious interest in the prevention or mitigation of deadly conflict. Not only are we in direct contact with the suffering of those who manage to escape persecution and mass violence, but we also witness the shrinking willingness to offer them sanctuary."
The role that those concerned with forced migration can play regarding prevention is a limited but important one. Clearly, there are neither the resources nor the capacity to prevent conflict, ensure human rights or promote economic security in all countries that may produce forced migrants. Those concerned with forced migration can, however, 1) advocate alleviation of the causes of forced migration; 2) stimulate early warning of and response to refugee emergencies to prevent displacements and mitigate longer-term impacts; 3) advocate utilization of humanitarian assistance in a manner that reduces tensions, stabilizes communities, limits the potential for its diversion to military purposes, and reaches those in need without unnecessarily requiring their movement towards the aid; and 4) encourage safe and orderly repatriation in a manner that supports peace and reconciliation. At the same time, it is important to emphasize that prevention does not mean preventing people from seeking safety and protection abroad.
One area worth exploring is the role that expatriate communities can play in supporting democratization and human rights in home countries, particularly promoting respect for minority rights. This proposal is in sharp contrast to a better-known role that expatriates play in supporting continued conflict, particularly by furnishing financial resources to purchase arms. Just as expatriates send remittances to their home communities, they can send information and support for the democratic practices and rule of law that are common in their adopted countries.
Helping establish the rule of law, including protection of minority rights, is a key element to any prevention strategy. Many of the countries in transition do not yet have fully operating judicial systems. Nor do they have mechanisms to prevent or prosecute discrimination against minorities or to help ensure that discrimination does not lead to acts that may precipitate flight. Legal procedures for reclaiming land and other property, particularly upon return, are also sorely lacking in many of these societies. To the extent that destination countries—including expatriates who have developed new skills in mediation, minority rights and law—can help countries in transition to establish the rule of law, pressures for outward migration may be significantly diminished.
Strengthening Mechanisms that Promote Protection in Regions of Origin. Refugee protection is generally defined in relationship to the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol. The core, fundamental precepts of protection are: non-refoulement, including non-rejection of asylum seekers at the frontier; admission to safety; access to fair and efficient procedures for determination of refugee status; basic standards of treatment that accord with human dignity and integrity; and appropriate lasting solutions. Key to ensuring such protection is unhindered access to asylum-seekers and refugees to monitor their situation and treatment.
One of the principal responsibilities of the UN High Commissioner for Refugees' (UNHCR) is reinforcing these protection principles. Given that numerous countries have not yet signed the refugee Convention nor implemented policies and procedures to protect refugees, UNHCR should continue to encourage signatories. Even with full accordance to the 1951 Convention, however, gaps in international protection will be seen. The Convention definition is narrow in scope, referencing a well-founded fear of persecution on specific grounds. Persons who flee generalised conflict, violence and abuses do not necessarily fit the 1951 Convention definition. Although the OAU Convention and the Cartagena Declaration widen the scope to include those fleeing such situations, and UNHCR considers them to be of concern, States do not consistently apply the broader criteria.
Moreover, the Convention refers only to those who are already out of their countries of origin. It does not pertain to those who are still at home, even if they are subject to the type of conditions that would make them refugees if they left. In effect, the refugee system presents a fundamental dilemma for those concerned with protection: only those who manage to flee are covered by the refugee Convention, but flight often requires refugees to break immigration laws and to subject themselves to danger and sometimes exploitation at the hands of smugglers and traffickers.
A challenge is to broaden the scope of refugee protection to fill these gaps, and to do so in a manner that ensures the continued integrity of asylum while protecting the broadened system from potential abuse. A number of different approaches could be considered:
Â· Encourage adoption of forms of protection that complement asylum, with these complementary protection regimes focusing in particular on persons who flee generalised conflict and violence. States should set out minimum standards of treatment for those granted the complementary status, affording similar protections to those spelled out in the Convention. The principal obligation of States should be non-return of migrants to conditions in which they would be endangered. If such conditions continue for some time, however, States should be encouraged to permit those granted the complementary status to remain permanently.
Complementary statuses serve not only to protect the large number of asylum seekers who flee conflict rather than persecution, they also facilitate both the appearance and reality of migration control. At present, it appears as if States have less control over their asylum systems than is the case. Although a sometimes-small minority of applicants are accorded asylum, a much larger number are permitted to remain on other humanitarian grounds. Because the policies are framed solely as asylum policies, however, these other forms of relief tend to be disregarded. They do have value, apart from their humanitarian one, in allowing States to keep track of persons within their territory, determine what rights accrue to specific statuses, and require return if conditions permit.
Â· Encourage development of mechanisms for in-country protection to minimise the negative effects of such migration controls as visa requirements and carrier sanctions. In particular, States should explore the feasibility of establishing procedures through which would-be asylum seekers can request protection prior to departure. Several options should be considered: creating special "refugee" visas that embassies and consulates would grant to persons who do not qualify for regular visas but who can demonstrate that they are or will be endangered if they do not leave their home countries; establishing UNHCR offices in countries of origin where would-be asylum seekers could request protection, with the understanding that they would be evacuated to countries willing and able to receive them; and broadening the responsibilities of pre-inspection personnel and other immigration officials assigned to overseas locations so that they can assess the asylum claims of persons seeking to board aircraft and other carriers without proper documentation.
These various mechanisms are largely untried, and they certainly are not substitutes for a functioning asylum system. The experience with in-country processing for refugee resettlement has been mixed, to say the least, for both refugee protection and migration management. For example, the Orderly Departure Program (ODP) from Vietnam and Cuba at least partially stemmed large-scale departures in unseaworthy boats, saving lives and providing a safer avenue for departure. The departures were stemmed, however, because both governments agreed to halt the movements. Bona fide refugees who were afraid to apply for orderly departure, thereby making themselves known to the government, had even more limited options for flight. In Haiti, in particular, the presence of in-country processing was used by the United States as a reason to return interdicted boats directly to Haiti without affording passengers the opportunity to apply for asylum. From the immigration management vantage, ODP arrangements could hinder the capacity of the receiving country to set its own priorities for admission. In the Vietnamese ODP, for example, the U.S. established lists of persons who sought entry and met minimal criteria for admission, and Vietnam set lists of those it would grant exit permission. Generally, only those who were on both lists were able to leave, but these individuals may not have been as high priorities as were other applicants. Despite these problems, and the necessity for UNHCR continually to reinforce that in-country procedures cannot be a substitute for asylum, they hold one overriding advantage: they provide opportunities for victims of persecution and other abuses to find safety without resort to subterfuge and further violation of their rights.
Â· Explore the feasibility of establishing regional protection mechanisms. Regional protection holds promise for helping States balance twin interests: providing protection to refugees without providing admission to persons who do not otherwise qualify for entry. As discussed above, international migration generally requires both push and pull factors. In the case of refugees seeking entry into the highly developed countries of North America and Europe, the push may be persecution or conflict, but the pull is generally better economic opportunities. Regional protection—that is, protection in neighbouring or nearby countries with similar economies to those of the country of origin—offers safety without the potential magnet for unauthorised migration presented by admission to wealthier nations. It also presumably facilitates repatriation when conditions permit because the economic advantages of remaining outside of one's country are reduced.
Regional protection is hardly a new concept. The vast majority of refugees have always found asylum within their regions of origin, generally in neighbouring countries. What is new is the interest of European and North American States in redirecting movements towards regional centres.
This approach was pioneered in southeast Asia, when a processing centre was established in Bataan, the Philippines, to receive refugees admitted to Thailand, Malaysia, Singapore, and Hong Kong for temporary asylum before they were resettled elsewhere. Because the numbers seeking entry outpaced the resettlement capacity, the processing centre relieved the pressure on first asylum countries, keeping the door opened for protection, and allowed the resettlement countries to examine applications carefully to determine who was admissible. The processing centre effectively served both protection and migration management ends.
A different form of regional protection was used in 1994 to address an increasing number of boat departures from Haiti. In this case, regional protection was offered as an alternative to admission into the United States. Fearing that access to U.S. territory would serve as a magnet to further flight, the U.S. instead offered safe haven at Guantanamo Naval Base and, through a regional agreement, in Panama and the Turks and Caico Islands, but emphasised that there would be no admission to the U.S. The implementation of this policy led to an abrupt decline in boat departures, but not before about 40,000 Haitians afforded themselves of this regional protection. The need for safe haven lessened considerably when international pressure and the threat of military intervention led to a restoration of the elected government and the presence of peacekeeping forces. The vast majority of those offered protection chose to return home when conditions permitted. A small number were permitted entry into the U.S. to pursue asylum claims or to seek medical attention.
A third example of regional protection, supplemented by humanitarian evacuation to preserve first asylum, occurred during the Kosovo crisis. By far the largest number of refugees from Kosovo remained in the neighbouring countries of Albania and the former Yugoslav Republic of Macedonia. However, to ensure that first asylum was maintained, and in recognition of Macedonia's concern about its own security, other States agreed to accept some refugees for temporary protection or resettlement. A regional approach was hence sustained by international responsibility-sharing.
Costa Rica provides a fourth example. Costa Rica has provided temporary protection to persons fleeing civil conflict as well as natural disasters. Recognizing that many of the migrants would not be able to return home, the Costa Rican government is supporting integration programs in 21 Costa Rican communities, providing supplemental education, employment, health, and housing assistance to both migrants and other local residents. With the help of the International Organization for Migration (IOM), these inititiatives include education programs that involve migrants and local residents in building or refurbishing schooling facilities in areas with many migrants and in designing curricula that preserve cultural identity.
This brief review of the experience with regional protection shows it has utility, but it reinforces that regional protection must be accompanied by mechanisms for broader responsibility sharing—in both the costs of maintaining regional protection as well as the resettlement or relocation of at least a portion of those requiring protection.
Resolving the Status of Forced Migrants. States increasingly are turning towards temporary mechanisms to address migration flows. The growing interest in temporary protection policies, along with the increased use even in traditional immigration countries of temporary work provisions, lead to many situations in which the longer-term status of migrants, including forced ones, remains in doubt for sometimes lengthy periods. There are two likely resolutions to these situations: return of migrants to their home countries or more permanent integration into their new communities. Third country resettlement is a less frequent, though often important, alternative for mig