The commentary on the Supreme Court’s decision on the Trump Executive Orders has largely focused on the part of the Orders that imposed the travel ban on six predominantly Muslim countries. Less noticed has been the paragraphs at the end of the decision that discuss the Orders’ suspension of the refugee program.
Here's a thoughtful take from Marty Lederman on the Supreme Court's decision today on the Trump Executive Orders. We will have a post soon on the implications of the decision for the refugee program.
Since the Syrian conflict began in 2011, its neighbor Lebanon quickly became the country that hosts the highest number of refugee per capita; today one in four is a refugee. Initially, Lebanon had an open-border with Syria. Between 2013 and 2014, UNHCR registered on average over 48,000 refugees per month. Despite the massive influx, Lebanon did not create refugee camps for Syrians.
In a June 12 speech to governments and NGOs at UNHCR’s annual consultations on refugee resettlement in Geneva, UN High Commissioner for Refugees Filippo Grandi made a passionate plea for additional resettlement pledges from participating nations. He will likely be disappointed.
President Trump's tweets this morning are truly remarkable and must be giving fits to Department of Justice attorneys--not to mention his Press Secretary and Cabinet Secretaries who have repeatedly asserted that the Executive Orders do not constitute a "ban."
Two items worth noting. First, the State Department has again begun processing for refugee admissions, despite President Trump's Executive Order putting the program on hold and capping admissions for the current fiscal year at 50,000. Second, the Federal Court of Appeals for Fourth Circuit issued a scathing opinion affirming (nearly all parts of) a lower court's preliminary injunction against the revised Trump Order.
The idea of "international migration law" is not new, but it is receiving increased attention from a number of legal scholars. In some degree, they are responding to the domination of refugee law in discussions of international law relating to the movement of people. AJIL Unbound (the online edition of the American Journal of International Law) has recently published a "Symposium on Framing Global Migration Law," in which Jaya Ramji-Nogales has a piece well-worth reading: "Moving Beyond the Refugee Law Paradigm."
The Center for Global Development and the International Rescue Committee have teamed up to produce an interesting report: Refugee Compacts: Addressing the Crisis of Protracted Displacement. (Full disclosure: I was a member of the Study Group for the Report). This excerpt from the Executive Summary provides the central conclusion: Compact agreements have emerged as a new approach, bringing together donors and development and humanitarian actors under host-country leadership for multiyear agreements to achieve defined, sustainable outcomes for refugees and host communities. Under a compact framework, diverse actors make mutually reinforcing commitments to resources, policy changes, and projects designed to achieve a shared vision.
The Harvard FXB Center has published an important and troubling report: Emergency within an Emergency: The Growing Epidemic of Sexual Exploitation and Abuse of Migrant Children in Greece. It is co-authored by Vasileia Digidiki and Jacqueline Bhabha.
Despite the growing scale of forced displacement, it is increasingly clear that traditional durable solutions are only working for a limited number of refugees across the globe. The realization of durable solutions for refugees remains bleak: repatriation is often not possible due to persistent insecurity and weak governance; host countries continue to resist or restrict opportunities for local integration; and resettlement slots remain limited to less than 1% of the global refugee population. In recent years, academics have argued that continued emphasis on these three solutions “fails to recognize a fundamental need to move away from understanding all solutions simply in terms of ‘fixing’ people in places.”
What happens to people displaced from countries that don’t exist? Those displaced from ISIS- or Donetsk People's Republic (DNR)-controlled territories have had to confront this very question. They are, as a technical matter, categorized as Internally Displaced Persons (IDPs) rather than refugees, due to international non-recognition of the states from which they have been displaced; and as such, these individuals have been particularly affected by the lack of consensus on how to deal with IDPs. The experiences of individuals displaced during now-frozen conflicts following the fall of communist regimes in the Balkans and Caucasus suggest that they are unlikely to enjoy many of the legal protections afforded to refugees. The combination of a weak international legal regime to govern IDPs and de jure states’ political disincentives to integrate them suggests that they will not enjoy such protections until either a legally binding IDP regime is developed or the frozen conflicts become resolved.
War zones, and the paths along which people flee them, are sites of abundant rumor and few certainties. Parties to a conflict may have a strategic interest in spreading misinformation and rumors, while hostilities may have disrupted the ordinary flows of news from independent organizations. Yet even affected people who have managed to flee conflict as refugees may find little clarity. While host nations may not actively spread rumors, they may have little incentive to correct ambiguities over important facts like deadlines to apply for asylum. And generally speaking, refugees find themselves in countries where they do not know the language and whose media are not oriented towards providing them with information.
IGAD--the Intergovernmental Authority on Development, constituted by the four Horn of Africa states plus Sudan, South Sudan, Kenya and Uganda--last week issued an important communique on Somali refugees. The Nairobi Declaration on Durable Solutions for Somali Refugees and Reintegration of Returnees in Somalia builds on earlier regional statements and agreements to work collectively toward safe and durable Somali returns and to seek additional funding from the international community to support hosting states.
Volker Türk, Assistant High Commissioner for Protection at UNHCR, has recently given two speeches that merit attention. Türk's March 3 keynote address to the Fourth Humanitarian Congress in Vienna includes important language criticizing "externalization" policies that undercut international responsibility-sharing.
A federal district court in Virginia has now ruled in favor of the revised Trump Executive Order banning visas to persons from six predominantly Muslim countries. The court held that earlier Trump statements did not "fatally infect" the second version of the Order. Irrespective of this opinion, the nation-wide injunctions issued by two other district courts continue in force.
UNHCR has released a "non-paper" on its plan for drafting the Global Compact on Refugees. Last year's New York Declaration charged UNHCR with presenting a draft Compact for consideration by the General Assembly in 2018. An Annex to the Declaration described the elements of a "Comprehensive Refugee Response Framework (CRRF)," which is to be the central feature of the Compact.
Here is a link to the decision of the Ninth Circuit Court of Appeals not to review the decision of a panel of the Court issued February 9th, which rejected a challenge to the decision of the (Washington State) District Court to issue a temporary restraining order against the first Executive Order.
As Alex Aleinikoff stated in this forum recently, there will be much to report about Donald Trump’s Executive Orders relating to immigration enforcement and refugees in coming months. Given that the President recently issued an amended immigration order on 6 March, it is timely to reflect not only upon the legality of the order itself, but also upon the broader question of the role of the bureaucracy in carrying out any new order. As readers will know, President Trump’s executive immigration order issued in January attracted protest and litigation. In States of Washington and Minnesota v. Trump the U.S. District Court for the Western District of Washington granted a temporary injunction against the operation of the order, and the 9th Circuit refused to stay that injunction. Although the President has now rescinded that order, litigation on this matter looks set to continue with the Legal Director of the American Civil Liberties Union (ACLU) indicating that it will challenge the revised order in the courts.
Donald Trump’s revised Executive Order imposing a visa ban and reducing the U.S. refugee resettlement program can be found here. I found this commentary by Amy Davidson (The New Yorker) particularly insightful. The Order was (re)written in an attempt to withstand legal challenges. Thus, it includes paragraphs offering a security rationale for the (now) six countries it includes in the visa ban (Iraq is off the list); it exempts from the ban all persons with existing valid visas to enter the U.S. as well as green card holders, already approved refugees and other categories; it deletes the provision that gave special treatment for religious minorities seeking entry as refugees; and—to avoid a repeat of the havoc at airports—it doesn’t go into effect for 10 days.
The protracted nature of refugee situations has become increasingly common, underlining the importance of finding solutions that incorporate the economic opportunities and access to livelihoods in countries of first asylum. Indeed, we are witnessing a shift from a humanitarian assistance based framework, which has contributed to the long term problem of refugee dependence, to a developmental framework that would promote refugee self-reliance. This shift has been aided by strategic partnerships between UNHCR and non-traditional actors, including the Ford Foundation, Trickle Up, and the World Bank’s Consultative Group to Assist the Poor. In the post, I discuss the introduction of the Graduation Approach as a way for refugees to overcome extreme poverty.
While Trump’s Executive Order is widely viewed -including by myself – as an abject measure and a violation of international and human rights law, including children’s rights and refugee rights, I cannot help but question how much better Europe is faring in dealing with its borders, its migration policy, and its international protection obligations.
Human Rights Watch has published an important report, Pakistan Coercion UN Complicity: The Mass Forced Return of Afghan Refugees. The report details the return of 365,000 Afghan refugees (out of a total of 1.5 million registered refugees) from Pakistan in the second half of 2016. It condemns the forced nature of the returns and strongly criticizes UNHCR for not speaking out against the Pakistan government’s actions.
It is a reality of human behavior that people usually relate better to stories than to facts and reasoned analysis. Stories have the power to motivate, compel, and persuade – to create a movement or call people to action. Social media has become a space for the sharing of stories, and indeed much of the online conversation about refugees is through this medium. Which stories people choose to share should be of interest to anyone concerned about the plight of refugees; as these choices elucidate points of interest, allude to how perceptions might be shaped, and open an opportunity to influence hearts and minds. This Forum post will consider the refugee stories that are shared on twitter. Analyzing common narratives from the popular stories, this post hopes to give a flavor of the kind of content that is capturing the public imagination, and explain why anyone working to improve the lives of refugees should care about these stories.
In Resolving Policy Conundrums: Enhancing Humanitarian Protection in Southeast Asia, Marie McAuliffe presents a case study on the policy responses to the May 2015 crisis as context for “discussions of humanitarian protection in Southeast Asia, and of Rohingya maritime migrants in particular.” (p. 4). This post reviews the findings of the report and provides further observations by drawing on recent developments in the region.
Last year, the Kenyan government announced that it would close Dadaab refugee camp, repatriate Somali refugees, and disband the Department of Refugees. On February 9, 2017, a decision of the High Court in Nairobi invalidated the government’s planned course of action. The court held that return of Somali refugees would violate the 1951 Refugee Convention’s norm of non-refoulement and constitute discrimination prohibited by the Kenyan Constitution. The failure to consider individual cases under prevailing law was deemed to violate the Kenyan Fair Administrative Action Act. Further, the court held that the government lacked authority to close the Department of Refugees, which would require legislation enacted by the Parliament.
The term "Hot Returns" refers to the "push-back" operations against migrants authorized by the Spanish government in Ceuta and Melilla. After many years denouncing the situation faced by migrants attempting to irregularly cross into Spain through Ceuta and Melilla, attention is now focused on the N.D. and N.T. v. Spain case currently before the European Court of Human Rights. This is the first time an international court will have the opportunity to rule on the legality of the Spanish Government's actions along the Spanish-Moroccan border.
The headlines we saw over the past two years were European. Indeed, the word “crisis” was first attached to refugees when the refugees showed up in Europe. But this is not a European issue, or even a Western one. The numbers of refugees reaching Europe fell in 2016 to about one third the 2015 levels from 1 million to 300 thousand thanks to the constraints on transit imposed by Turkey as part of the EU Turkey deal. The Syrian war was plainly a humanitarian crisis for the millions of persons displaced by the violence. The dangers of crossing the Mediterranean from Libya have not declined. But for Europe, the secondary flow of refugees from Syria’s neighbors presented and presents not a demographic or economic crisis (the number of asylum-seekers arriving in Europe is about one-half of one percent of the continent’s total population). The crisis is one of governance, more specifically governance failure.
There will be much to report about Donald Trump’s Executive Orders relating to immigration enforcement and refugees over the coming weeks and months. Receiving most attention at the moment are the literally dozens of court cases challenging the ban on the admission of persons from seven predominantly Muslim countries and suspension of the U.S. refugee program. Yesterday, the federal Court of Appeals for the Ninth Circuit upheld a decision by a Seattle, Washington district court granting a nationwide Temporary Restraining Order that suspended enforcement of these aspects of one of the Executive Orders.