DEVELOPMENT OF INTERNATIONAL REFUGEE LAW ADAPTING TO GLOBAL MIGRATION CRISES OVER TIME

DEVELOPMENT OF INTERNATIONAL REFUGEE LAW ADAPTING TO

GLOBAL MIGRATION CRISES OVER TIME

1. Historical development of refugee law

I. Ancient and medieval practices

The idea of asylum and protection of endangered persons is a fairy tale story that goes back to

antiquity, but the foundation of authoritative refugee law that we have nowadays goes back to

comparatively a short period of time. Sanctuary was a well-known tradition in the ancient Greek

culture, even in the times of the classic epoch; temples were respecting the life of those

individuals who were fleeing from persecution or punishment (Betts & Collier, 2017). It is also

important to mention that this idea was not only Greek, but Egyptian and Roman as well, which

reveals the perception of such a need on the part of other ancient civilizations. Nevertheless, two

points need clarifications: first, the above mentioned basic practices rather had a limited and

different character than the present day refugee law. The practices of asylum in the Middle Ages

were carried forward and underwent changes from the earlier Roman time, and most of these

developments came to be associated with Christian churches. Apart from it, the churches and

monasteries became more like a shelter due to the expansion of Christianity in Europe

(Hathaway, 2005). Although such practices scribed the basic parameters for protection, they

were much different from the modern refugee law concerning their goals and techniques. The

protection that a person received from medieval mode was more spiritual rather than legal and

the protection was temporary as well geographical. In the opinion of Goodwin-Gill and McAdam

(2021), such a shift in the approach to refugees and related practices from the representations of

the ancient and medieval periods into the modern legal frameworks for refugees entailed

fundamental changes in the political rationality and world order. The beginning of the gradual

state transformation of asylum can be associated with the formation of the Nation-State system in

the 17th century which transformed asylum to some extent from a religious issue to an

international political one. This evolution paved for more complicated and structuralized refugee

protection concepts that emerged in the 20th century; however, it also brought about new

challenges for states where protection of refugees has been met with their protection of national

interests (Fiddian-Qasmiyeh et al. , 2014).

II. Post-World War I initiatives

This was especially so after WWI, which signalled a shift in the legal regime for refugees and

stateless persons as the world witnessed vulnerabilities that defined a new course in the laws

guiding refugees‟ treatment internationally. The breakup of the empires and the shift of borders

meant that millions of people became stateless and had no legal rights or status anywhere in the

world and there is an international need for a solution to address this problem. Governance of

refugees was a major problem before the second world war, but with the formation of the league

of nations in 1919 principles for future refugee protection where enacted ( Jaeger, 2001). The

emergence of the league High Commissioner for Refugees headed by Fridtjof Nansen in 1921

became one of the most crucial reforms. Organization and coordination were initiated by Nansen

that helped in coming up with the Nansen passport which helped refugees gain recognition hence

the ability to move from one country to another and access basic rights (Skran, 1995). While this

approach could thus show the possibility of the countries from different parts of the world

uniting their efforts in solving the problems connected with refugees and also define new subject

of the international law. But it should be noted that these measures in their nature and the late

implementation were rather uncoordinated, voluntary and fragmentized, they concerned only

particular categories of refugees, rather than creating the system of protection for all of them.

The first legal instrument that was particularly conscious of the issue of refugees was the 1933

Convention Relating to the International Status of Refugees; however, this convention was

signed by only a few nations and was largely ineffective (Hathaway, 1990). To some degree,

critics have also pointed out that although post-WWI initiatives posited sound propositions, the

propositions did not address displacement definitively and no concrete legal regime for refugees‟

protection was enacted as per the promises made. Harking back to Loescher‟s (1993) analysis, it

is imperative to state that the period between the two world wars was rich in humanitarian trends

but also in the asserting of nation-state sovereignty that led to restrictions on refugees‟ rights.

Nevertheless, the post-World War I efforts were significant in laying down the framework that

refugee concern was the international concern thus preparing the ground for more elaborate

approaches towards treatment of refugees after the second World War.

III. 1951 Refugee Convention

The Convention of 28 July 1951 on the Status of Refugees might be viewed as a turning point or

a landmark in the development of the international refugee law being the first, comprehensive,

and legally binding international instrument in the matter of refugees‟ rights and protection. Born

out of the rubbles of the Second World War, the convention aimed at providing solutions to

millions of people who were rendered homeless by the war or were in internally displaced

persons status. Thus defining a refugee 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,” has become the standard of modern

refugee protection (UNHCR, 2011, p. 14). Although this definition forms the basis of the

understanding of classical liberalism, it has also attracted copious debates and interpretations.

Meanwhile, it can be criticized for not being sufficient to capture modern causes of persecution

like general violence or environmental conditions (Chimni, 2009). Temporal and geographical

restrictions of the Convention which at first defined the occurrence of events within Europe and

before 1951 also pointed at the circumstances of the Convention‟s adoption and showed that the

document was far from being sufficient to respond to the global problems in the sphere of

refugees. Nonetheless, the 1951 CO highlighted an essential structure that holds to this date and

gave direction to the rights of refugees despite; this includes the non-return principle which bars

anyone from returning a refugee back to the country of origin where the person might be in

further peril. The Convention thereby stated special rights of refugees pertaining to; courts,

education and also employment, which served to establish the benchmarks of how refugees

should be treated in the host countries. However, as Hathaway (2005) pointed out, these rights

have not been well realized where most of the states have not complied with the provisions of the

Convention. In view of its elaboration, the 1951 Refugee Convention is far from perfect but can

be considered a landmark document in the sphere of refugee protection that effectively altered

with reference to the new global processes.

IV. 1967 Protocol expansion

The 1967 Protocol relating to the Status of Refugees can indeed be seen as this movement‟s most

important development in the international sphere as it remedies some of the shortcomings which

the 1951 Convention presented and broadens its application to fit the world of today. Thus, the

major success of the Protocol was the extension of the temporal and geographical scope of the

applicability of the original definition of Convention itself, which has been applied only to the

events, took place in Europe and before the year 1951 only (Fitzmaurice, 2007). Consequently,

this expansion altered the nature of the institution of refugee protection from a strictly European

and Cold War phenomenon to a genuinely universal mechanism suitable for the management of

the modern refugee crises. The Protocol itself thus paved for such an approach of the refugee

problem by merely removing geographical and temporal restrictions on the problem. However,

expansion created new issues and discussions that were part of the experience. Like many other

scholars, Gibney (2004) said that since the definition of refugees was expanded, some states

raised issues of possible misuse of the asylum system and higher migratory pressures. This

conflict of humanitarianism as applied to refugees and state sovereignty for the latter has

continued to be a thorny question in the practical application of refugee law. The 1967 Protocol

however expanded the concept of refugees while retaining the core meaning of the one contained

in the 1951 Convention. This flexibility has been very important especially in times of emerging

newer types of persecution and resulting in refugee like situations which are for instance, on

account of gender or sexual orientation, which are not well addressed by the Convention as

initially developed by Edwards (2003). Nevertheless, one can argue with Chimni (2000) that the

Protocol does not sufficiently change the characteristics of the refugee regime to address to the

fundamental causes of refugees or to fairly share the burden among states. However, the 1967

Protocol continues to form the basis of international refugee law, thus marking a new era in the

reception of refugees and the enhancement of refugee protection more especially in an

internationalized world.

2. Key principles of refugee protection

I. Non-return

Non-return principle thus occupies the key position in regulating the treatment of refugees in the

international law and forbids states to expel refugees to territories where their life and also

liberty will be endangered. This principle which is contained in article 33 (1) of the 1951

Refugee Convention has over the years become a principle of customary international law

appreciated even in states that have not ratified the said convention (Goodwin-Gill & Mcadam,

2007). It should be stressed that non-return is the only protection available to persons who had to

flee persecution, torture or similar human rights abuses. Nevertheless, as it will be discussed in

the paper, the application of and references to this principle has been a matter of controversy and

difficulties. Since states are indispensable in sponsoring the humanitarian responsibilities, they

end up sacrificing their adherences to national insecurities interests, and thus, adopting restrictive

measures at the borderlines of non-return (Hathaway, 2005). The principle has been under

pressure in cases to do with mass influx situations; instances when countries may feel that they

are overwhelmed with asylums seekers. Some scholars have claimed that certain states

deliberately avoid fulfilling their non-return responsibilities through Sea interceptions, safe third

country arrangements or through the off-shoring or outsourcing of asylum processing

(Gammeltoft-Hansen, 2011). Such practices therefore open many legal and also ethical issues

concerning state liability as well as the definitions of state responsibilities. Nonetheless the

protection of non-return has thereby proved to remain an area of constructive interpretation due

to controversies over whether it extends up to the frontier or whether it is limited to cases of

rejection within the country‟s boundaries. Nevertheless, non-return stays one of the key

protective measures in the protection of refugees and acts as a reaffirmation of the international

community‟s desire to respect human dignity and protect those in need (Lauterpacht &

Bethlehem, 2003).

II. Right to seek asylum

Asylum seeking is a fundamental right in the international law and is derived from article 14 of

the Universal Declaration of Human Rights which provides protection for persons who are being

persecuted (United Nations, 1948). This right presupposes their basic value and emphasizes the

global obligation to give asylum to the needy (Gibney, 2004). But its practical implementation

has barriers that are formed by state policies regarding restriction of access to asylum

procedures. For example, the visa checks, carrier penalties, as well as encampment and

interception measures on the high seas are used by states to ensure that asylum seekers do not

make it to regions where they can present their claims (Gibney, 2004). This conflict between

asylum rights and state sovereignty presents what scholars call the „asylum paradox; the fact that

there is a right to seek asylum internationally while its exercise is within a state‟s discretion

(Gammeltoft-Hansen and Hathaway, 2015). Globalization and mobility have compounded this

titration, pushing states to enhance and at the same time acknowledge borders (Gibney, 2004).

Also, again due to the incorporation of asylum seekers and refugees into the broad category of

migration, the discourse within the public and politicians has led to a questioning of the

credibility of asylum seekers‟ claims, thus the creation of a suitable environment for restricted

policies. Nevertheless, they asserted on the right of asylum in the present world which is faced

with most conflicts and human rights abuses. It is one of the protection mechanisms for people

escaping persecution to protect their lives and liberties (Fiddian-Qasmiyeh et al. , 2014). The

need for strong and encouraged asylum schemes is obvious due to the continuous armed

struggles, the violations of human rights, and natural disasters around the globe (Fiddian-

Qasmiyeh et al. , 2014). To sum up, the legal protection of asylum seekers‟ rights is highly

valued in the international legal framework, but the practical realization of this right faces

numerous challenges at the level of state practice and legislation, as well as in people‟s

consciousness. If asylum seekers‟ rights are to be protected, advocacy has to go on worldwide,

and it must involve international cooperation and respect for human rights which in actuality

entail respecting the dignity of all human beings and their rights, therefore, its protection will

always need advocacy (United Nations, 1948; Gibney, 2004)

III. Non-discrimination

This is because the principle non – discrimination is a cardinal principle of the international

refugee law; this principle prohibits discriminating refugees based on their race, religion,

nationality or any other aspect (UNHCR, 2011). Nevertheless, non-derogable character of human

rights is an important pillar of work with refugees and its utilization, established by Article 3 of

the 1951 Refugee Convention, encounters multiple-faceted difficulties in practice. The conflict

of interest between the non-discrimination principle and national security is common in most

States and these results in policies which end up excluding particular groups of refugees in the

process (Goodwin-Gill & McAdam, 2007). This challenge is further compounded by the

growing cases of xenophobia and anti-immigrant sentiments witnessed across the world hence

making it difficult to practice equity in treatment of refugees from one country to another.

Hathaway (2005) observes that while there is public insistence on states fulfilling their non-

return obligations, critics have pointed out that different states‟ policies: sometimes include

seemingly more stringent conditions such as heightened screening procedures or temporary

protection measures which, although some may be legitimate, are now claimed in various

complaints to work through latent discrimination against particular nationalities/ethnic groups;

this could be seen as amounting to indirect discrimination. Moreover, the social relations of

refugees discriminate against them based on other factors such as gender, age and disability that

often do not find space in major policies (Edwards, 2003). For that reason, such issues require an

intersectional approach to refugee protection, where multiple modes of discriminations are

simultaneously acknowledged and combatted. These notwithstanding, the principle of non-

discrimination is significant to protection of refugee rights against any despotic acts and

moreover essential to the viability and credibility of the of the international protection system

(UNHCR, 2011). Respect for the non-discrimination principle will not only be an affirmation to

the dignity of humanity but also a reaffirmation to the humanitarian child of the refugee law.

Thus, subsequent augmenting of the awareness, further development of the international

cooperation, and acceptance of the non-discriminatory policies as the crucial steps towards the

implementation of the principles of non-discrimination in the refugee cases. In this way, states

can thus enhance the enforcement of human rights and also ensure equal rights for each person

who needs a safe haven from persecution as well as brutality all over the world.

IV. Family unity

The concept of family integrity is well rooted in the international refugee laws whereby families

are held as critical viable social entities that should not be broken during forced displacement

(Jastram & Newland, 2003). Family unity being a key concept in refugee law is protected and

recognized in fundamental documents like the 1951 Refugee Convention and the Universal

Declaration of Human Rights. Thus, it is also strengthening the existence and sustainability of

refugee, including in terms of improving their resilience and the possibility of finding durable

solutions such as resettlement (Rousseau et al. , 2004). But deriving concrete policies for

creating and maintaining the family is not easy. The definition of family that is used in most

states is quite limited and may not be recognized by the social or cultural standards of refugees

and, thus, refugees can be denied membership if they are not a nuclear family, even though they

fulfil important roles in the refugee families‟ institution (Rousseau et al. , 2004). Furthermore,

complicated immigration procedures and long processes within the context of the family reunion

common in refugees‟ life decrease response rates due to severe emotions and suffering from

being separated in the long-term basis (Van Hear, 2014). The commonly held principles of

family unity have in the past also been challenged during mass displacement crises in which the

goal of securing protection of displaced persons as quickly as possible is at times at odds with

preserving the unity of the families (Van Hear, 2014). According to the critics, some particular

states have applied family separation as a strategy of deterring asylum seekers although it

violates the international legal norms and despite the fact that such measures caused the severe

traumatization of the affected people (Wood, 2018). Nevertheless the concept of family unity is

still relevant and should be incorporated into the approaches to the integration of the refugees. It

puts emphasis on the need to respect family unity and refugees‟ ability to stay together as it is

their fundamental human right. Solving these issues demands a shift towards more open and

liberal Family Reunification Policies correspond to the international human rights standards and

the refugee‟s family‟s needs (Jastram & Newland, 2003). Thus, strengthening these efforts, states

will be able to meet their commitments under international law and contribute to the welfare and

sustainability of refugees‟ communities in the world.

3. Regional refugee protection frameworks

I. African Union Convention

The 1969 Organisation of African Unity (OAU) Convention on the specific aspects of refugee

problems in Africa, now under the African Union, significantly expands regional protection of

refugees by defining refugees very broadly as those who are „ individually, persecuted for

reasons of race, religion, nationality, membership of a particular social group, or political

opinion‟, or persons fleeing „external aggression , occupation, foreign domination or events

amounting to an appeal to the refugees‟ This broad definition answers to specificity of the

African decolonization and conflicts history, recognizing that people may become displaced not

only due to persecution (Sharpe, 2012). Praise has been accorded to the Convention for its

pragmatic and humanitarian scope of providing asylum to a wider spectrum of refugees than is

provided for in the 1951 instruments. But, it has been observed that there have been some

hurdles when it comes to putting into practice the OAU Convention. Several African countries

struggle with resource limitations that prevent them from adhering to its stipulations to the latter,

which leads to mixed implementation across Africa (Rutinwa, 2002). The critics have noted that

while the Convention‟s broad refugee definition is very positive, it creates considerable pressures

on already overstretched host countries (Crisp, 2006). Furthermore, there is controversy about

the Convention‟s focus on voluntary repatriation as the first and foremost form of the durable

solution in cases when refugees live in protracted situations where safe, durable and perhaps not

even desirable return is possible. Nevertheless, the OAU Convention remains a ground-breaking

treaty in the protection of refugees within the region and in other regions of the world and a

formative component of the development of international refugee law standards (D‟Orsi, 2016).

It is not only limited to Africa since other regions also follow Africa‟s lead regarding a definition

of refugee status that is more inclusive and to encourage collective responses to displacement

crises. Therefore, the OAU Convention that portrays humanitarian attention and that

acknowledges different factors that make people forced to flee, has to date, defined the

protection of refugee rights and dignity throughout the world.

II. Cartagena Declaration

Even though, the Cartagena Declaration on Refugees adopted In 1984 is not legally binding; It

has drastically impacted refugee protection in Latin America through revising the criteria of

those who can be referred to as refugees to include those who have fled due to “generalized

violence, foreign aggression, internal conflicts, massive violation of human rights or other

circumstances which have seriously disturbed public order” (Cartagena Declaration, 1984,

Conclusion III Such a broad concept is justified by the situation of forced migration in the region

connected with civil wars and oppressive governments. The Cartagena Declaration has thus

acquired appreciation for its forward-looking orientation and has been anchored into the

domestic laws of a number of Latin American countries, thus pointing to the region‟s

commitment to provide refugees with protection in the broadest sense (Cantor & Trimiño Mora,

2015). Nevertheless, the experiment with the principles of the Declaration has been quite

dissimilar throughout the region. Even now, proposing a wide and comprehensive definition of

refugees, some countries still use the limited standards when determining the refugees‟ status and

granting protection, and this leads to having discrepancies as a result (Mondelli, 2018). Some

scholars have complained that due to the qualitative nature of the Declaration, some states have

been implementing it selectively thus, the frames for refugee protection they have created are

characterized by loopholes and blank spaces (Cantor & Trimiño Mora, 2015). Also, the focus of

the Declaration on local integration as a sustainable approach also has not lacked inexplicable

difficulties in terms of enforcement. Most Latin American countries lack resources and the

capability for integration resulting in challenges on how refugees can be well resettled and

supported in those countries (Reed-Hurtado, 2013). This has contributed to adverse social and

economic integration of the refugees thus reversing the aspirations of the Declaration in finding

sustainable solutions to individuals and families who are displaced. Nevertheless, the position of

the Cartagena Declaration has remained vital as a regional instrument in refugee protection

agenda, proving that regional approaches can further enhance the global structure (Mondelli,

2018). Therefore, it can be claimed that the Division of Competing Approaches is still influential

to the current political discourse on refugees and supports the solidification of perceiving every

displaced person as a refugee and addressing their multiple-generational needs as alternatives to

building walls and jail cells in Latin America and globally.

III. European Union asylum system

The Common European Asylum System (CEAS) represents a comprehensive endeavour to

standardize asylum policies across European Union (EU) member states, aiming to ensure

equitable and efficient processing of asylum claims while upholding robust standards of

protection (European Commission, 2014). Established through a series of directives and

regulations; the CEAS therefore seeks to harmonize practices ranging from reception conditions

to qualification criteria and also procedural norms, thereby promoting a unified approach to

asylum within the EU. However the implementation of the CEAS has hence encountered

significant hurdles, particularly amplified in the aftermath of the 2015 refugee crisis. A central

point of contention has been the Dublin Regulation, which generally mandates that asylum

seekers lodge their claims in the first EU country they enter. Critics argue that this mechanism

places disproportionate burdens on Border States and may overlook the preferences and

circumstances of asylum seekers (Brekke & Brochmann, 2015). The crisis further exposed

disparities among member states in their capacity to adhere to CEAS standards, resulting in a

perceived "asylum lottery" where the likelihood of obtaining protection can vary significantly

depending on the country of application (Trauner, 2016). The rise of populist and hence anti-

immigrant sentiments in some EU nations has thereby complicated efforts to reform and also

reinforce the CEAS. This has prompted calls for increased border controls and more stringent

immigration policies, which some assert undermine the solidarity and fundamental principles of

the CEAS (Geddes & Scholten, 2016). Nevertheless the CEAS remains pivotal for refugee

protection in Europe therefore serving as a foundational framework amid on-going efforts to

mitigate its shortcomings and also adapt to evolving migration dynamics. Efforts are underway

to revise the Dublin Regulation and enhance burden-sharing mechanisms among member states,

aiming to achieve greater fairness and efficiency in asylum processing across the EU (European

Commission, 2014). By addressing these challenges as well as fostering greater cooperation; the

CEAS thus continues to play a crucial role in shaping the future of refugee policy within

Europe's broader migration landscape.

IV. Asia-Pacific regional cooperation

The Asia- pacific region has approximately one fifth of the world‟s refugees and internally

displaced persons but does not have a coherent regional approach to refugee protection not like

Africa, Latin America or Europe. These differences are blamed on the differences of policies,

economic capacities, and historical and cultural backgrounds (Davies, 2008). Even though there

is no much continental and comprehensive mechanism for Regional Organizations to address

problems in their own region, there are recorded cases of collaboration especially during crises

and complications concerning refugee situations. Of these, the Comprehensive Plan of Action for

Indochinese Refugees (CPA) remains one of the most important examples; it was put into action

during 1989-1997. This process ensured that various Origin and First Asylum countries could

coordinate in handling the Indochinese Refugee problem and Resettlement with other countries

(Robinson, 2004). While effective in solving present-day problems, such frameworks have not

been strategic, repeat business-oriented as opposed to resident solutions. In the Asia-Pacific

region, the policy makers and representatives have established a forum known as the Bali

Process on People Smuggling, Trafficking in Persons and Related Transnational Crime to

deliberate on forced migration problems in the Asian region in the last few years. Nevertheless,

its concern with border protection and irregular immigration has been criticized for possibly

eclipsing the issue of refugee protection (Kneebone, 2014). Currently there is no legally

enforceable convention that governs the Asia-Pacific and this has led to variations in the level of

protection of refugees. Some of the countries in the region have not signed the 1951 Refugee

Convention and those that have signed provide for some important provisions are accompanied

by critical reservations translating to an erratic set of national policies (McAdam, 2013). Some

countries offer refugee good protection while in others the issue of refugees is not well

recognized at all or, is poorly protected. It has been claimed that this piecemeal approach has

resulted in the prolongation of refugee situations and there remain many significant protection

deficiencies. However which option is pursued will thus be the topic of future research. Here

also, the supporters of regional cooperation note that such successful efforts as the CPA require

political commitment. To progress, these gaps can only be met with improved collaboration

between Asia-Pacific countries as both a region and nation states in the improvement of coherent

and complete strategies in towards the promotion of refugee rights and their protection as well as

guaranteeing of necessary support to displaced populations in the Asia-Pacific region.

4. Challenges in contemporary refugee crises

I. Mass displacement events

Cross border migration crises in general involve; a large influx of persons seeking asylum from

war, political oppression or natural calamities, present serious challenges to the system of

refugee protection. Such incidents tend to stretch the capability of the individual states and

international organizations more often, thereby revealing the gaps in legal and operationally

actionable remedies. The crisis of Syrian refugees that erupted in 2011 exposes the challenges of

dealing with gigantic refugee flows in which millions of people end up as refugees in the

neighbouring and other countries (Ostrand, 2015). Situations like these challenge the spirit of

provision of relative responsibility encapsulated in the 1951 Refugee Convention hence ending

up with makeshift solutions that do not meet international protection norms. Large scale

displacement gives rise to long-term refugee situations where a significant number of people

have to live in an unfamiliar environment for a long time which can pose a challenge to host

societies and hence, give rise to various socio-economic problems (Loescher et al. , 2008). The

reaction of the international community to mass displacement events has been labelled as un-

proportional and too reactive with low planning on the longer term. The above authors have

however noted a major fault with the approach of applying emergency humanitarian assistance

as they point out that this obscures the necessity for solutions that are durable as well as the want

to eradicate the actual causes of forced displacement, noting that the emergency humanitarian

assistance has become the preferred formula (Betts, 2015). Moreover mass displacements have

displaced more people to camps and also improvised shelters devoid of any legal status; although

they offer a timely solution that turns into a long-term problem for refugees as they confine

refugees‟ rights as well as their chances for integration. These events have also led to political

scrap in many hosting countries resulting to more complicated asylum rules and shutting down of

borders. Nevertheless, mass displacement events contribute positively to the innovation in the

sphere of refugee protection, for instance, the appearance of new types of humanitarian visas

along with the augmentation of the role of the development actors in refugee situations (Zetter,

2015).

II. Mixed migration flows

Complex refugee protection challenges arise from the fact that refugees are joined together with

such humanitarian and economic migrants as asylum seekers, refugees, and other groups who

often heed similar movement routes and means. Such flows allow even the distinction between

forced and voluntary migration to be faded out while determining the status of the people in need

of international protection (Van Hear et al. , 2009). Mixed migration has become more prevalent

in the recent decade primarily concerning the crossing of Mediterranean and Southeast Asia. It

thus raises difficulties for due states and also international organizations performance while

protecting the right to asylum as well as regulating migrations in general. Skeptics suggest that

the manner in which refugee and other related terminologies are used in everyday political

parlance weakens refugees‟ protection and leads to the adoption of closure of border policies

(Crisp, 2008). Mixed migration has also pointed out problems in categorizing migration policies

where one can be motivated by several or changing reasons which may sometimes contradict

each other. This brings ambiguity in the protection frameworks and makes status determination

and assistance provision shadier to be categorized. Besides, mixed flows are characterized by

high risks and potentiation by using vulnerable and destructive modes of transportation hence

exposing the migrants and refugees to multiple dangers and infringement of their rights (Collyer,

2010). The international community‟s approach to mixed migration has ranged from; improving

protection at sea and also elaborating better tools of screening. Nonetheless, it has been claimed

that many states have used mixed flows as an alibi for increased entry restrictions and thereby

possible diminished access to asylum (Frelick et al. , 2016). Combating mixed migration

challenges entails a protection centred and rights based approach which also takes into

consideration issues of migration management as well as the root causes of forceful and

voluntary migration.

III. Protracted refugee situations

Long-term refugees with UNHCR referring to them as those who have spent five or more years

in exile are not a rarity anymore as they number in millions and have put pressure on the existing

refugee protection mechanisms. These circumstances prove to be exhausting for host countries‟

capacities and their refugees can have limited rights and opportunities, relying on aid (Loescher

and Milner, 2005). Based on chronic violence, political stagnation and also lack of; sustainable

resolution, protracted displacement undermines individuals‟ life as well as regional stability and

thus development. Temporary asylum systems do not fit well the context of extended

displacement with refugees in limbo for long years without feasible solutions to return to their

homes or integrate locally or in third countries (Crisp, 2003). This protraction thereby increases

the level of psychological rights violation and also intergenerational trauma among refugees.

Critics of the contemporary scenarios suggest that in matters relating to indefinitely prolonged

scenarios, solutions provide minimal „care and maintenance‟ kind of strategies instead of

addressing structural mechanisms for input that will foster refugee influx from within and

subsequently for the refugees (Hyndman & Giles, 2017). The problems that haunt this approach

include the following; this approach does not tackle structural drivers of displacement and does

not promote sustainable solutions. Policies and techniques like; Uganda‟s self-reliance model

may be some of the best approaches as required in the modern society. Special emphasis should

be given to the approach ensuring refugees‟ right to access land and willingness to work in order

to integrate refugees economically and socially into host communities (WORLD, 2014, p. 94).

Nevertheless, such actions lie themselves to these impossibilities, while at the same time, calling

for political will and financial resources to take such an initiative to a larger scale. Further on, the

focus shifts towards the qualitative change that concerns the development of the new approaches

that do not merely address humanitarian needs without regard to developmental aspects,

improving refugees‟ agency (Loescher & Milner, 2005). Such approaches should therefore

emphasize sustainable measures aimed at conflict transformation, economic development

especially of the refugees‟ home regions, and policies that would allow refugees to integrate into

the political and economic life in host countries. By considering the issue of dealing with

prolonged refugees‟ situations it should be pointed that it is a long-term process that demands

continued and consolidated international partnership and engagement in defending the rights and

humanity of refugees. Forced migrants can become productive and law abiding citizens of their

host country only when the international humanitarian system adopts long-term solutions instead

of adopting short-term fixes of handing out food and other necessities.

IV. Climate-induced displacement

Climate change associated displacement appears as a new threat on refugees‟ international

protection framework as environmental factors motivated migration. While climate causes forced

migration, there are other social, economic and political factors that get compounded with

climate causes for displacement (Ionesco et al. , 2017). Though awareness about the same has

risen over the years, climate-related displacement is categorized into the legal limbo because

persons displaced by environmental factors do not meet the legal definition of a refugee under

the 1951 Convention. As a result efforts have been therefore made advocating for the

development of new laws and also legal instruments to protect climate migrants and thus

displaced persons. There are various ways through which climate change affects displacement; it

ranges from slow onset such as: sea level rise, desertification, to sudden onset that includes:

hurricanes and floods. Such changes in environment may result into internal as well as external

displacement, which complicates the concept of state responsibility and international protection

for refugees (McAdam, 2012). The global society has begun addressing C-IDs to some extent

through processes such as the Nansen Initiative and the Platform on Disaster Displacement.

However, critics contend that these efforts are still inadequate due to the nature of the problem

and the predicted future status of this form of migration (Kälin, 2015). The issue of climate

invasion thereby needs comprehensive solutions that cover; climate change management,

adaptation to climate change to improve the quality of the locals, climate change refugees and

also protected status. Measures that are taken to slow down the occurrence of climate change

include the reduction of greenhouse emission rates which hampers the mobility of humans.

Conversely, the adaptation plans are prospective endeavours of protecting other communities

that are susceptible to climate shocks and consequently prevent them from requiring relocation.

Such can involve increasing the physical and communication infrastructure, devising early

warning mechanisms, strengthening social protection systems among others. Others have

suggested that either the existing refugee definition could be liberalized, a new category of

climate refugees introduced, or there could be improvement made on the other frameworks of

complementary protection. Extending the extent of climate change-induced displacement might

mean either reforming the existing laws or passing new conventions regarding climate

displacement. The nature of climate displacement is such that new solutions are thus required

that would cut across humanitarian, development, and also environment domains.

5. Legal responses to emerging issues

I. Temporary protection mechanisms

Temporary protection mechanisms have come into operation as an appropriate strategy to the

mass influx situations, which provide short-term protection to a large number of displaced

persons without the evaluation and determination of their status. The given mechanisms are

employed to call for a prompt intervention in response to humanitarian crises and to retain the

option of repatriation as soon as the situation in the country becomes stable. Such an approach is,

for example, the EU Temporary Protection Directive adopted in 2001 and activated for the first

time at the time of the Ukrainian crisis in 2022 (Ineli-Ciger, 2018). The detailed analysis of

temporary protection legal framework shows that even though it can provide immediate and

pragmatic solutions it is not without legal and ethically ambiguous aspects. Some scholars have

pointed out that temporary status might erode refuges‟ right to asylum and create long-term

conditions of limbo for persons under protection (Fitzpatrick, 2000). As for the second factor, the

temporality of this status is not properly defined, possibly leaving people in a legal grey area for

years. In addition, the rights granted temporary protection differs and may not entitle holders

with the same rights as that of a Convention refugee. Temporary protection‟s advocates construct

it as a tool by which states can provide a large, one-time, non-renewable response to

humanitarian crises while not opening the door to long-term refuge-seeking according to Kerber,

(1999) p16. Nevertheless, the measures with the temporary protection have been inconsistent;

some of the states have been using it as a tool to escape from the requirements of the

international refugee law. The dilemma is thus the value of focusing on the exigent realities of

protection and the means by which this can be achieved while at the same time also ensuring that

refugees are provided with durable solutions and the other rights granted to them. Leaving legal

mechanisms of temporary protection in the context of escalated global displacement, the status of

this subject in the international protection system will always remain a topic of discussion and

development.

II. Complementary forms of protection

On this account, there have emerged other forms of protection as a result of perceived short-

comings of the 1951 Refugee Convention definition and which afford protection to the deserving

persons although they do not fit the definition of a refugee under the 1951 Convention but due to

circumstances if sent back to their home country; their lives would be at risk. These forms of

protection which are subsidiary protection in European Union and humanitarian visa in other

countries accept that people may be forced to leave their homes in other circumstances apart

from those described in the Convention which may for example be generalized violence or

natural disasters (Mcadam, 2007). It can be argued that the extension of complementary

protection is an evidence of depolarization of the forced displacement phenomenon and

recognition of the fact that there should be more specific approaches designed for the protection

of forced migrants. Nonetheless, when it comes to the practical applicability of complementary

protection, there is a lot of variance with different jurisdictions providing different degrees as

well as differing spans of protection. Some scholars fear that some of the states have been using

complementary protection means as an effort to restrict the extent to which one can attain the

status of a full refugee which if granted may lead to a fractional protection system wherein the

persons falling under complementary protection have been given a raw deal with derogated

rights (Goodwin-Gill, McAdam, 2007). Supporters claim that complementary protection meets

some of the important needs of the international protection system as it provides the care that is

missed when no other proper protection is available. It has also affected the interpretations of the

Refugee Convention per se in the sense that there are some jurisdictions, which, given these new

approaches to protection complements, have broadened their reading of the grounds for

Convention refugees. Since the process of forced displacement is still dynamically developing

with reference to new world challenges, the function and expansion of the complementary

protection systems are still considered to be one of the potential perspectives in the development

of the international and comparative law and migration policy (Mandal, 200}

III. Burden-sharing agreements

Concerning international refugee protection, burden-sharing is an issue that entails the allocation

of refugee protection responsibilities and costs among the states. These agreements hence

provide understanding that the protection of refugees is a global issue that cannot be solved alone

by individual states. In practice, the principle of burden-sharing has been inferred in some kind

of way in the preamble of the 1951 Refugee Convention and has also reiterated in other

international regards and frame works (Betts, 2009). Nevertheless, the methods of sharing the

burdens have not been implemented as intended before. The Global Compact on Refugees was

agreed in 2018 but it is not legally binding, thus the action points agreed by States remain

uncertain in their commitments to implement even though it demonstrate worthwhile effort to

codify international legal cooperation in responding to refugee situations (Türk, 2019). Although

the Compact seeks to offer a fairer and more stable mechanism for sharing the obligations across

states, a major weakness that comes with this approach is that; states can pledge or commit

themselves to do something yet they will not be compelled to actualize the commitments made.

This characteristic makes the funding rather erratic and arbitrary hence does not effectively

address the needs of the RHCs, thus compromising the protective regime for refugees

internationally. As Suhrke (1998, p. 302) pointed out, one of the potential issues of burden-

sharing is that they are not solutions to the source of displacement, which can in some cases lead

to the encouragement of measures in potential host countries. For instance, one country may

formulate policies to ensure that asylum seekers do not gain entry into the country or else be

detained, and transfer the liability to the next country. European Union‟s efforts in sharing the

responsibilities include the Dublin Regulation, and relocation policies, have encountered

challenges demonstrating that the issue of refugee distribution is politically influenced

(Thielemann, 2018). The difficulties include inequality of member states to accommodate

refugees, hitch in transference of asylum seekers, and legal questions on the understanding as

well as the application of the agreements. As to burden-sharing strategies, one can conclude that

the main perspectives on it reflect its necessity for preserving the international refugee protection

regime as well as providing states that host refugees from various countries with adequate

financial, political, and social support. Some of the best ways that can be used for a better

sharing of this burden are as follows: This is one way through which burden-sharing is made

easier since the responsibilities of hosting refugees affects the three global realms; economically

socially and logistically, therefore, by sharing this burden the world will be in better place in

terms of meeting the needs of the refugees. However achieving efficient and fair sharing of the

burden remains a classic problem, in which it is necessary to find new solutions that fit between

the principles of state sovereignty and the principles of international cooperation.

IV. Extraterritorial processing arrangements

Arrangements for the extraterritorial processing of asylum seekers implies that; asylum

applications are considered outside of the territory of the intended destination country, remain

frequent nowadays. Such measures, which are often articulated in the bi- or multilateral

cooperation contexts, target at regulating the influx of the immigrants and preventing the

unauthorized immigrants‟ access to a particular country. Some examples include Australia

detention camps in Nauru and Papua New Guinea as well as the EU-Turkey deal (Ghezelbash,

2018). They further state that; these arrangements can thus act as a measure in steering clear

convoluted sea crossings and also beating human trafficking. Some criticisms that they give the

fact that through the processing of asylum claims offshore, it is possible to eliminate the

attraction of unsafe and risky migratory routes and discourage the use of smugglers for

migration, therefore saving lives and maintaining order in the migration process. Nonetheless

extraterritorial processing has received a lot of criticism from human rights bodies as well as

jurists. Some critics, however, argue that such practices contravene international refugee law

especially the non-return principle which prevents the return of a person to a country where

faced with a real risk of being persecuted for reasons of race, religion, nationality, membership

of a particular political group or political opinion (Gammeltoft-Hansen & Hathaway, 2015).

They have noted that many a time processing centres are positioned off-shore and detain asylum

seekers in worse conditions for a longer time not meeting legal or humanitarian benchmarks.

Information about overcrowding, insufficient medical treatments, and detainee suffering from

psychological problems are ethical and legally questionable. There are also some issues

concerning confidentiality and responsibility of such deals, besides, questions about chain return

when people are transferred from one country to another in order to avoid their admissible

asylum evaluation. This often results in asylum seekers being ultimately returned to situations in

their home country they are persecuted in thus undermining international law. The legal issues

concerning extraterritorial processing have been litigated in different courts, and winning some

and losing some. Specific judicial instances have endorsed these practices under specified

circumstances while other judicial bodies have deemed them a violation of international law and

human rights law. Others have claimed that these configurations are best characterized as forms

of shifting rather than sharing of responsibility, which may endanger the overall paradigm of

refugee protection across the globe (Mountz, 2011). For that reason, some destination countries

may shift their responsibilities on the processing of asylum to the third countries, which might

not be in a position or have the willingness to offer adequate protection to the asylum seekers.

This approach can leave the organization of refugee protection as a whole vulnerable, meaning

that states‟ self-interest becomes the core focus.

6. Future directions in refugee law

I. Global Compact on Refugees

The Global Compact on Refugees (GCR) that has been agreed in 2018 by the UN General

Assembly is viewed as the major advancement in the attempts to build up the coherence of the

international refugee response. As for the goals of GCR, they are to better share responsibilities

and burdens in both states and refugees, make the focus on refugee‟s individual responsibility,

increase possibilities of access to other countries besides the country of asylum as well as ensure

the conditions to which refugees can return home safely (UNHCR, 2018). This non-binding

framework thereby aims to formulate the principles of international cooperation described in the

1951 Refugee Convention and also the 1967 Protocol into an actionable plan. The GCR proposes

the establishment of a fresh approach- Global Refugee Forum and a new approach to large

refugee situations through the CRRF. Supporters therefore suggest that the GCR stands a chance

to radically shift shelter paradigms through six pillars that advocate for a better approach to

protection and solutions (Turk & Garlick, 2019). However, critics have argued that due to the

voluntary nature of the commitments under the GCR, the moot point is that this is inadequate to

deal with the full causes of forced displacement (Chimni, 2019). Some of the challenges include

adequate funding for the implementation of the GCR, effective refugees‟ engagement in the

process and sustaining political will in the context of continental and regional business as usual.

However the GCR thus remains as a positive shift of a more coherent and also fairer worldwide

system for refugees‟ situations, which may lead to a crucial influence in the future of the

international refugee protection.

II. Technology in refugee management

Technology in the context of refugee management has gradually become one of the important

trends in the last few years; the reform of which has proposed possible solutions to the more or

less problems in the process of refugee protection and assistance. Some of the innovations that is

in use and being experimented in the various contexts include; biometric registration systems,

block chain for identity management and artificial intelligence for case processing. As far as the

former is concerned, the advocates of these technologies express the belief that these

technologies could thus lead to improvements in; efficiency, the minimization of fraud and also

the provision of better services to refugees. For example, UNHCR‟s Biometric Identity

Management System (BIMS) seeks to offer refugees with enduring, easily movable identities

which may help in availing services and or/ protection in different countries (UNHCR, 2018).

However the application of Information technology in the management of refugees also has

ethical and privacy issues. Some concerns are within a surveillance and data controversy,

including about the capability of refugees to face persecution or discrimination (Latonero & Kift,

2018). Another issue of controversy is the digital accessibility because the technology-based

methodologies tend to oversimplify and thus, exclude the most fragile refugees who are not able

to navigate the digital devices. Tomorrow‟s solutions today must consider data protection while

processing refugees‟ data, their informed consent, and impacts even beyond the ones intended.

Concerning technologies, we understand that they have useful ways of advancing the cause of

refugee shelter and assistance but the utilization of these technologies should be right based

focusing on value, refugees‟ desirability, and agency.

III. Alternative protection pathways

Alternative pathways of protection are new models to develop other opportunities for the

protection and ensuring the durable solutions to the refugees rather than depending only on

resettlement programs. The action pathways are; the humanitarian visas, private sponsorship,

education scholarship and labour mobility. The emergence of these alternatives is the result of

realizing that protection through methods traditionally used are insufficient for the volume and

nature of forced displacement in the world (Kagan, 2017). Private sponsorship programs that

exist in Canada and more recently in other countries, enables individuals or groups to support

resettlement of refugees, in a way that might augment protection capacity and social integration

of such persons. Thus, educational pathways, for example, scholarships for refugee children, do

not only offer protection but also promote investment in human capital and future endeavours of

recovery. Labour mobility schemes focus on refugees‟ skills and the gaps in the labour market

within the host countries with the goal to serve as a pathway to safety and decent employment.

Supporters point out such arrangements can enhance the existing structures for protection, raise

the overall figures of resettlement, and address the difficulties stemming from the heterogeneity

of refugees‟ situations (Kumin, 2015). However, the critics‟ note that such programs are not

intended to absolve state‟s responsibility for compliance with the refugee international law or

any other traditional resettlement programs. Some of the issues arising include exploitation in

anew labour market schemes and issues of duality by which only the skilled or educated refugees

will benefit from such pathways. That is why the measures need to be thus designed thoroughly

to make them contribute to protection standards as well as present rights-based solutions.

Nonetheless, there are bumps in the road with pathways as an innovative approach to

interventions in refugee protection offering a brighter future by enlarging the protection

standards and empowering the refugees for more control over their lives.

IV. Strengthening international cooperation

It is thus an important priority for the international cooperation to therefore enhance the effective

approaches to the forced displacement challenges around the world and also of the refugees‟

protection. The demographic and political characteristics of modern flight illustrate that the ad

hoc or individualist strategies are insufficient and requires better organized and enduring

assistances from the countries around the world (Betts, 2011). The Global Compact on Refugees

is thereby a large improvement for increasing cooperation on refugees, but its success lies in

actual implementation as well as political will. This ranges from states‟ power relations,

externalization of asylum and burden-sharing in its truest sense (Gammeltoft-Hansen, 2018). The

question therefore of how to improve interaction between countries usually encompasses the

aspect of modern financial tools. For example, Global Concessional Financing Facility, which is

implemented by the World Bank, has shown that there are possible solutions through multilateral

mechanisms for refugee-hosting nations. In a way, financing the abilities on such terms can

contribute towards lessening the economic strains on countries which contain large

concentrations of refugees, ensuring some stability and reasonableness of the distribution of

loads in the world. Nonetheless, the critics have a point that today‟s cooperation seems to be

more about serving the state interests at the cost of refugee protection, thus, developing policies

that are detrimental to asylum rights (Crisp, 2017). This can lead to negative measures that

prevent refugees to get protection and also do not respond to causes of flight. Building

cooperation thus extends to advance partners from the traditional international organizations to

other players such as; the business community, non-governmental organizations and also

refugees. Hearings of the refugees as well as their incorporation into the policy formulation

processes are hence widely seen as necessary for the formulation of relevant and also effective

solutions. Refugees possess unique knowledge and experiences which should contribute to the

adjustment of better and „humanitarian‟ policies. Meanwhile collaboration with the civil society

organizations can thus improve advocacy while guaranteeing protection of refugees‟ rights and

hence their needs meet. The one waits for the other‟s political commitment to create a stronger

international cooperation, but in middle of global displacement, there should be innovative

methods of burden sharing, financing and governance. This is therefore done by seeking to

understand new interaction patterns that are thus more complex than state-driven entities;

deepening regional and also international cooperation. This means that the future of the

international refugee protection regime in the face also depends with pro-activity of states and all

the other stakeholders with interests in that line of business so much as they will be expected to

undertake international responsibilities while at the same time balancing their national needs.

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