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Zhu, Amy --- "Analysing The Effect Of The Global Compact On Refugees And Complementary Pathways On Attaining Durable Solutions: Reconciling Permanence And Flexibility" [2021] UNSWLawJlStuS 45; (2021) UNSWLJ Student Series No 21-45


ANALYSING THE EFFECT OF THE GLOBAL COMPACT ON REFUGEES AND COMPLEMENTARY PATHWAYS ON ATTAINING DURABLE SOLUTIONS: RECONCILING PERMANENCE AND FLEXIBILITY

AMY ZHU

I INTRODUCTION

Although the term ‘durable solution’ has not been explicitly defined in the 1951 Convention relating to the Status of Refugees (1951 Convention), or in the Statute of the Office of the United Nations High Commissioner for Refugees (UNHCR Statute), refugee situations have typically been resolved through voluntary repatriation, local integration in host states or resettlement in third countries.[1] However, in 2016 despite the voluntary repatriation of 552,000 refugees, the highest rate since 2008, this figure represented only 2.5% of all global refugees.[2] With the recognition that traditional durable solutions are increasingly elusive and profoundly inadequate, the subject of this essay is to determine whether the implementation of complementary pathways and the affirmation of the Global Compact on Refugees (GCR) does in fact strengthen and expand the international protection regime for refugees in practice.[3]

This essay asserts that the increasingly complex refugee regime requires solutions based not only on three static avenues, but on broader pragmatic solutions offered by complementary pathways and the GCR. This essay finds that the GCR and complementary pathways expand refugee solutions in theory via a focus on socio-economic inclusion and refugee self-reliance. I acknowledge that the complementary pathways and the GCR’s focus of providing diverse solutions from both a humanitarian and developmental perspective could be taken advantage of by various stakeholders and weaken the permanence offered by a purely humanitarian focused durable solution. However, this essay argues that progress towards durable refugee solutions can be achieved in the current framework if the GCR and complementary pathways function to assist, rather than guarantee, the attainment of a durable solution.

I will proceed in three parts. First, I will examine issues with how ‘durable solutions’ have been traditionally defined by the UNHCR and conclude that voluntary repatriation, local integration and resettlement are profoundly inadequate when implemented in practice. In part 2, I examine how multi-faceted complementary pathways further the GCR’s recommendations to expand durable solutions. Finally, this essay considers whether the potential limitations of the GCR and the conflicting interests between traditional durable solutions and the flexibility of complementary pathways can be reconciled.

II ISSUES WITH THE CURRENT INTERPRETATION OF DURABLE SOLUTION

A Traditional Interpretations of Durable Solutions

The ultimate goal of refugee protection is to find durable solutions which will enable refugees to live in safety and rebuild their lives. While the 1951 Convention is silent on the definition of durable solution, the association of a durable solution with either voluntary repatriation, third country resettlement and local integration stems from the UNHCR Statute.[4] The statute mandates that the UNHCR is to seek permanent solutions for the refugee problem ‘by assisting Governments ... to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities’.[5]

Repatriation is the right of displaced persons to return to their country of origin. Among the three main durable solutions, the UNHCR Executive Committee and the EU have adopted repatriation as ‘the most preferred solution in the majority of refugee situations’.[6] In scenarios where repatriation is not an option, integrating refugees into the local community or resettling refugees from a host to a third State which has agreed to admit refugees with permanent residence status and access to rights similar to those enjoyed by nationals are the next preferred alternatives.[7] While taking into account specific refugee circumstances, it is through a combination of voluntary repatriation, third country settlement and local integration that the UNHCR Executive Committee traditionally had hoped to achieve lasting durable solutions to the refugee crisis.[8]

1 Analysing the Effectiveness of Traditional Durable Solution Avenues

(a) Human Rights Perspective: Realising Refugee Aspirations

The adoption of voluntary repatriation as the ‘most preferred’ policy solution is based on the home-coming model. This model perceives that a refugee’s return to their country of origin is largely a ‘problem free process’, based on refugees’ ‘natural’ desires to go back to their homeland following the termination of the root causes of their forced displacement.[9]

However, I challenge that voluntary repatriation is not necessarily a ‘natural’ process, especially where the link between refugees’ return migration and the pursuit of their aspirations is almost entirely missing in the home-coming model of repatriation.[10] Through an in-depth case study of Liberian refugees in Ghana, Omata notes that the decision for the majority of refugees on whether or not to return to their country of origin consists of a complex interplay of social, economic and political factors in which ‘a nostalgic longing for a homeland has little space’.[11] Addo goes on to note that Liberians in Buduburam prioritised continuing their education in Ghana while ‘dreaming of migrating to the West’, as opposed to returning to their country of origin.[12] It is not unreasonable that refugee aspirations and motivations are transmuted into betterment during the course of repatriation, especially in light of the harsh socio-economic conditions and health resources faced by refugees in the return journey.[13] Voluntary repatriation also cannot be said to be a natural process where the other alternative is ‘utter destitution with denial of accommodation’.[14] Kusari and Walsh have further criticised that the standards of refugee protection have been lowered such that when faced with inadequate refugee camp circumstances and direct threats, refugees have minimal choice but to sign voluntary repatriation forms.[15] It is therefore arguable whether ‘voluntary return programs’ even meet the criteria for ‘voluntariness’.[16] Effectively, this evidences that the UNHCR’s ‘home-coming model’ holds a sedentary and simple perception of repatriation that does not necessarily capture the untidy and complex reality of refugees’ return decision-making. I find that greater attention needs to be paid to the socio-political factors which shape the global preference towards repatriation and the experiences of returnees.

Voluntary repatriation is also not necessarily a ‘problem-free process’. Bradley notes that of the 552,000 voluntarily repatriated refugees in 2016, several refugees who have returned to their countries of origin in Afghanistan, Somalia and Sudan have subsequently been internally displaced.[17] Having their international recognition as a ‘refugee’ removed, yet still having not benefitted from any meaningful solution to their situation, calls the effectiveness of repatriation as a durable solution into question.[18] It is alarming that 76% of all forced returnees desire re-emigration and given the lack of research focusing on how returnees manage to build up their lives after returning to their countries of origin, there is a clear need to challenge the evidence basis upon which repatriation is conceptualised as a ‘natural’ and ‘problem free’ durable solution.[19]

(b) Practical Implementation Perspective: Encouraging Responsibility-Sharing

Attaining durable solutions for a mass refugee population in a manner that does disregard the subjective interests of refugees themselves requires responsibility and cooperation on the part of the international community. This recognition that refugee protection is an international issue in both scope and nature that cannot be accomplished without international cooperation and solidarity is noted in the preamble to the 1951 Convention.[20] Although the necessity of responsibility sharing, both physical and financial, was continuously underscored throughout the decades following the 1951 Convention, the Convention itself is not designed to regulate this collective action problem in full.[21] The Refugee Convention lacks a monitoring body that could assist with treaty interpretations as to how ‘responsibility sharing’ should play out in practice.[22] In fact, the UNHCR has a policy of non-penalisation for States failing to implement durable solutions, suggesting that per Article V of the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention), state participation towards facilitating durable solutions for refugees is voluntary in character.[23] As such, the Executive Committee notes that there is no obligation to accord a solution by way of local integration, even for States that are party to the Refugee Convention.[24] The implementation of traditional durable solutions is also merely a ‘sovereign decision’ that States have the option to exercise, ‘guided by their treaty obligations and human rights principles’. [25] When considering the tensions between the voluntary nature of State participation and the significant practical challenges required towards implementing traditional durable solutions, the attainment of durable solutions for mass refugee populations becomes even more difficult to actualise in practice.

Unsurprisingly, in attempting to facilitate and promote durable solutions, the UNHCR is currently struggling to negotiate grand strategies for solutions to the refugee crisis with the actual practicality of implementation in an inhospitable international political climate.[26] Van Selm explores in an European context how tensions have emerged between governments continuing to search for ways to uphold their basic Refugee Convention obligations to refugee protection and populist movements that continually perceive government-endorsed large-scale refugee immigration programs as threatening to traditional values.[27] With an increasing lack of political will by States to extend citizenship rights to large groups of refugees, coupled with persisting conflict in refugees’ home countries and an escalating number of refugees, the implementation of durable solutions and the home-coming model of repatriation becomes an increasingly unlikely and unviable solution.[28] To avoid the extreme calls for either the halting of refugee immigration and resettlement altogether, recognition is needed that the three main durable solution avenues provide limited options for large-scale refugee populations.[29] Greater consideration of pragmatic and flexible refugee solutions are necessary.

2 Need for Reconsideration

Unsurprisingly, the aspirations of solidarity and responsibility-sharing towards the implementation of traditional durable solutions have currently rarely been translated into concrete and meaningful arrangements for refugee protection in practice.[30] Despite the convergence of three traditional avenues, the UNHCR estimates that 75% of refugees remain in situations of protracted displacement and 42% of refugees have been trapped in stagnant circumstances lasting over 20 years.[31] Further, less than one percent of the world’s refugees are resettled each year and even fewer obtain citizenship as part of formal local integration efforts.[32]

This essay finds that there is currently a critical gap between the envisaged effectiveness of traditional UNHCR interpretations of ‘durable solutions’ and the reality of their implementation subjectively experienced by refugees in protracted exile. Simply defining a durable solution in terms of three avenues does not recognise the complexity embedded in a refugee’s decision-making process, which involves a convergence of individual factors and external economic, social and political parameters.[33] This gap therefore points to a necessary re-examination of how the current static and simplistic durable solution conceptions can be improved and expanded.[34]

III HOW THE GCR AND COMPLEMENTARY PATHWAYS EXPAND DURABLE SOLUTIONS

On 19 September 2016, the UN General Assembly’s adoption of the New York Declaration for Refugees and Migrants (New York Declaration) represented a radical departure in the refugee protection regime, recognising that traditional durable solutions were inadequate at redressing prolonged refugee situations.[35] Greater action in international refugee protection was needed and member States were committed to four broad objectives, being to the existing 1951 Convention obligations, to increased burden-sharing, to the GCR and to the Comprehensive Refugee Response Framework (CRRF).[36] The CRRF is directly incorporated into Part II of the GCR and the four broad recommendations made under the CRRF are as follows:[37]

1. Ease pressure on countries that welcome and host refugees; and

2. Build refugee self-reliance; and

3. Expand access to resettlement in third countries and other complementary pathways; and

4. Foster conditions that enable refugees to voluntarily return to their countries of origin in safety and dignity.

I will now analyse the effectiveness of the GCR, CRRF and complementary pathways at expanding ‘durable solution’ options in the international refugee regime, at reflecting the aspirations of refugees themselves and at being flexibly implemented to encourage more concrete outcomes and a greater degree of international cooperation.

A GCR Recommendations 1 and 2: Addressing Refugee Aspirations and Responsibility Sharing

Aleinikoff notes that traditionally, the UNHCR and the international community have treated refugee displacement as a purely humanitarian crisis.[38] The implementation of traditional durable solutions is reliant on placing mass refugee populations in camps who survive on meagre international aid, live in extreme poverty and endure an exceptionally long wait in the hopes of attaining favourable conditions whereby they may return to their place of origin or resettle in a third country.[39] Targeted and time-limited aid for refugees is generally provided in the form of ‘shelter, food and medical resources’ without consideration of refugees’ long-term aspirations or for the surrounding local population.[40] However with the adoption of the GCR framework, in particular the first two pillars which encourage responsibility-sharing and refugee self-reliance, there is a definitive move towards framing the refugee crisis at the nexus of both a humanitarian and developmental challenge.

While the concept of refugee self-reliance is not new and has been promoted by the UNHCR since the 1980s, the GCR’s second recommendation puts into practice what Aleinikoff calls ‘Newton’s fourth law’, that displaced populations remain displaced.[41] Rather than implementing traditional durable solutions solely through ‘movement’, by either moving refugees to back to their country of origin or transferring refugees to third countries, the GCR also builds on the ‘merit of stasis’ and seeks to improve refugee situations from the very beginning, in their first country of asylum.[42] The endorsement of refugee self-reliance and inclusion is broadly emphasised through opportunities for refugee work and education.[43] Proactively incorporating refugees into existing work and education structures, as opposed to placing their lives on hold in the indefinite process of moving, expands refugee solutions by fulfilling multiple humanitarian and immediate socio-economic concerns.[44] The GCR no longer characterises protracted refugee situations as a purely static humanitarian concern, but as consisting of developmental challenges where long-term refugee aspirations are an imperative consideration.

The GCR’s second pillar recommendation of ‘self-reliance’ supports its first recommendation of easing pressures on host States. Together, this concrete GCR framework hopes to encourage greater responsibility sharing and counter politicised and damaging narratives of ‘invasion’ and ‘emergency’ that Grandi notes is dominating the refugee debate in many countries of the Global North.[45] Encouraging refugee reliance via access to education and labour markets in their host communities enables refugees to expand their contacts, build their skills, and make them less reliant on inadequate and temporary humanitarian aid. The new arrangements place strong emphasis on mutual benefits to host communities which is supported by a growing body of research that demonstrates a self-reliant and resilient refugee community can positively impact local refugee-hosting communities through the creation of new markets.[46] For example in Grandi’s empirical exploration of Dijbouti’s legislated removal of refugee encampment, Ethopia has already taken steps to partner with the private sector and the World Bank to expand refugee access to jobs, education and legal documentation.[47] While the full effects of the GCR model will take some time to be fully realised and analysed, I find there are hopeful signs that the recognition of refugee aspirations can also benefit host communities and hopefully encourage greater international responsibility-sharing in the attainment of durable solutions.[48]

This inter-relationship between refugee self-reliance, host communities and international commitments to achieving durable solutions is well summarised in Harley’s documentation of refugee voices from the confines of Manus Island detention.[49] Behrouz Boochani writes that if refugees ‘were provided opportunities to form and present a different perception of our character, we would be able to challenge the system in more profound ways’.[50]

B GCR Recommendation 3: Complementary Pathways

The third pillar of the GCR recommends an expansion of complementary pathways. Complementary pathways are safe and regulated avenues that function in addition to, but not as a substitute, to existing durable solutions afforded to refugees under the international protection regime.[51] The minimum requirements for the programs and pathways that qualify as ‘complementary protection’ have not been explicitly defined.[52] As such, complementary protection currently consists of a broad range of pathways that tend to fulfil the more immediate protection needs of refugees, including access to safety and the fulfilment of basic human rights of access to education, employment and family reunification.[53] In light of the vast and growing shortfall between the number of places available for resettlement and the number of refugees in need of protection, complementary pathways play a vital role at expanding refugee access to safety, skills and solutions outside already-stretched States and first countries of asylum.

First, complementary pathways provide diverse and sustainable solutions for refugees that aim to balance both the needs of both refugees fleeing dangerous circumstances and the States that receive them. For example, defining the types of complementary pathways available in terms of finding family networks, seeking education and labour opportunities and finding safety directly reflect the reasons why refugees undertake the dangerous journey of fleeing their country of origin in the first place.[54] It encourages a move away from an irregular, uncontrolled and hostile refugee system to one consisting of ‘orderly and safe’ complementary pathways.[55] Further, in principle, defining the refugee eligibility criteria for complementary pathways in this manner may provide for a more balanced refugee population who arrive in host States than those selected on the basis of their vulnerabilities alone.[56] The benefit of complementary pathways in ‘expanding and increasing’ avenues for the admission of refugees in a mutually reinforcing way to host States has been widely endorsed by international organisations such as the International Organisation for Migration, International Labour Organisation and European Commission and Amnesty International who have encouraged States to incorporate complementary pathways avenues into national laws and policies.[57]

While the diversity of complementary pathways numerically increases the number of solutions available to refugees and also the number of refugees and asylum seekers eligible for these solutions, they also have the additional benefit of assisting the attainment of a durable solution in the long run.[58] Complementary pathways also contribute to the first two pillars of the GCR framework by going beyond purely humanitarian assistance to focus on protection that sits at the nexus of humanitarian and developmental assistance. These pathways align with the GCR’s intention to offer refugees pathways out of dependency towards self-reliance, skill retention and integration in host communities.[59] Research suggests that access to education and employment opportunities, and reunification with family members, all contribute to higher rates of successful refugee settlement and integration.[60] Effectively, complementary pathways help ‘build refugee capacities to attain a durable solution’ while also placing refugees in a better position to actively contribute to their new societies. The mutually reinforcing relationship between refugees and their host communities can have the added benefit of shifting damaging refugee narratives and fostering positive public attitudes towards refugees.[61]

Overall, the core objectives of the GCR framework, complementary pathways and traditional durable solutions are the same, that is to enhance protection and durable solutions for refugees and promote international responsibility sharing in the protection of refugees.[62] By providing immediate needs protection while aiding in the attainment of long-term durable solutions for refugees, complementary pathways highlight that encouraging refugee-reliance and building refugee skills can have broader benefits to host and international communities.

IV LIMITATIONS AND CONFLICTING INTERESTS OF THE REFUGEE PROTECTION REGIME

A States Not Bound but Committed: GCR Effect on Responsibility-Sharing

There is an inherent tension in the GCR. On the one hand, paragraph 49 of the GCR demonstrates a commitment to achieving ‘concrete contributions’ and ‘collective outcomes’ of its CRRF framework based on the principle of burden and responsibility sharing.[63] However, on the other hand, paragraph 4 notes that the GCR is a non-legally binding document.[64] Arnold-Fernandez criticises that despite the GCR representing the ‘political will and ambition of the international community as a whole for strengthened cooperation and solidarity with refugees and affected host countries’, its non-legally binding nature fails to address current limitations in the refugee responsibility-sharing framework including the lack of political will and global apathy.[65] Gleichert similarly agrees that the GCR fails to resolve and regulate social, economic and civil collective action to the refugee problem and concludes that the GCR functions as a mere ‘pious hope’.[66] Due to the essentially voluntary nature of State commitment, I recognise that many of the same limitations since the establishment of the 1951 Convention remain. This includes the inability to address how the equitable distribution of state responsibility, admission and equitable financing of refugee protection programmes will play out in practice.[67]

In terms of both financial and physical responsibility-sharing, the major concern here is that without binding legal guidelines or changes to the UNHCR’s structural funding mechanism, the stasis experienced in attaining durable refugee solutions will continue. The GCR is still ‘operationalised through voluntary contributions’, the contribution amounts of which are subject to State discretion.[68] The GCR has also not amended the ability of States to fund alternative refugee ‘solutions’ at their own discretion.[69] For instance, Harley notes that despite Australia outwardly declaring its support for the New York Declaration and the GCR, policy and legislation enacted by the Australian government in recent years has furthered a ‘policy of deterrence’ in contradiction to the GCR.[70] Australia has pursued the indefinite detention of asylum seekers arriving by sea in Nauru and Papua New Guinea and the interception of boats en route to Australia at an incredible financial cost. In fact, the actual estimated expenditure for ‘Offshore Management’ was AUD$1.16 billion as at April 2019.[71] By contrast, the Australian government contributed approximately AUD$47 million to UNHCR during 2018, four percent of its Offshore Management budget.[72] Effectively, when States are seen by the international community as not meeting its international commitments and displacing the protection needs of refugees onto others, either through the contradictory implementation of domestic policies or the withdrawal altogether from the GCR like the United States, opportunities for enhanced international cooperation in effecting the GCR are difficult to realise in practice.[73] The voluntary funding mechanisms that created the $6 billion deficit in the UNHCR’s budget remains unchanged and the ongoing deference of states to consider long-term solutions to the protracted refugee situation is likely to be perpetuated.[74] Harley therefore finds that the international refugee regime could be better served by a move away from ‘voluntary contributions’ towards a more ‘concrete legal commitment’.[75] Gilbert agrees and considers that unless the GCR establishes a series of concrete inter-state commitments, the GCR will do ‘no more than reiterate oft-stated avowals of support’ that fail to address the prolonged refugee crisis.[76]

I recognise Harley and Gleichert’s concerns over the GCR’s non-legally binding nature. However, I nonetheless find that the GCR’s commitments to supporting expanded solutions for both refugees and hosting communities and to establishing a framework that better resists State abrogation of refugee responsibilities, represent more than a ‘mere pious hope’.[77] First, the regular convenings of the Global Refugee Forums created by the GCR could give refugees a direct platform to voice their perspectives in global conversations surrounding the establishment of durable solutions.[78] The GCR also goes beyond the Refugee Convention’s lack of a monitoring body and attempts to resolve the tensions resulting from its non-binding nature by committing States to established indicators which assess how far the GCR’s principles of burden sharing have been operationalised.[79] The GCR has also considered follow-up mechanisms including ‘stocktaking at Global Refugee Forums’ and creating a ‘mechanism for tracking implementation of pledges and contributions as well as measuring the impact of the global compact’.[80] All these factors represent a step towards bridging the gap between subjective refugee aspirations and formal frameworks for the attainment of durable solutions.[81] There are certainly challenges in drafting detailed indicators and developing robust mechanisms to hold States accountable to these defined indicators. However, I hold that the GCR is capable of moving towards fairer and more predictable burden-sharing through a framework that may not legally bind, but nonetheless commits States to refugee protection.[82]

B Multi-faceted Nature of the Complementary Pathways: Conflicting Interests

Unlike the exclusively humanitarian goals of traditional durable solutions, complementary pathways serve multiple humanitarian-developmental objectives which is arguably the ‘selling point’ and the reason why States have been more willing to adopt complementary pathways. In Part III above, I established that in the best-case scenario, complementary pathways function as a pragmatic approach that balances refugee aspirations with community needs in a mutually reinforcing and fulfilling manner. However, criticism has been raised that the multiple objectives served by complementary pathways, of which durable solutions consist of only one of these objectives, represents a weakening of the permanency offered by traditional durable solutions and refugee protection.[83]

One of the main potential limitations of complementary pathways is that access relies not only on an assessment of refugees’ protection needs, but also on considerations, such as refugees’ skills, education and family relationships that are not necessarily related to protection needs.[84] This means that with the exception of humanitarian visas and admissions programs, complementary pathways do not necessarily target refugees who are most vulnerable and in need of a durable solution.[85] The intersecting interests of various actors engaged in complementary pathways such as governments, employers and education institutions further raises the concern that States will prioritise ‘refugee skills over refugee safety’ and conflict with the objectives of the GCR.[86] For example, labour migration programs ‘based on perceived or real costs and benefits... for the existing residents of the host country’ are often temporary and may limit the rights of labour migrants to work outside the sector or job they are initially employed in, or to access social security to support themselves or their families.[87]

Further, it has been criticised that obtaining guaranteed lasting solutions for refugees using complementary pathways is a particular challenge. First, there is no internationally accepted definition of complementary protection embodied in an international treaty or domestic legislation.[88] Complementary protection is therefore non-binding and does not formally state refugee status and entitlements nor provide a guaranteed pathway to accessing durable solutions.[89] Temporary migration channels, such as student pathways or labour migration schemes, are far from ‘durable’ themselves and are commonly valid only for the duration of the individual’s work or study. Labour mobility is also ‘often seasonal, circular, temporary and only sometimes leads to permanent residency’.[90] The durability of solutions provided by complementary pathways thus ‘depends on the terms under which they are followed and the extent to which they are accessible.’[91] The principal concern here mirrors McAdam’s argument that formalised complementary protection mechanisms do not lead to a status that is accorded to a person recognised as a refugee under the terms of the 1951 Refugee Convention.[92]

However, I nonetheless argue that the more limited forms of durability provided by complementary pathways are a necessary means of assisting the attainment of durable solutions. Complementary pathways do not aim to provide a permanent solution for refugees. In fact, describing the temporary assistance of complementary pathways as providing a durable solution is harmful and could risk masking State and international ‘failures at addressing the persistent precariousness’ faced by marginalised refugee populations.[93] Insisting that complementary pathways should guarantee access to permanent solutions would also likely limit their uptake by States. I find that the absence of a purely humanitarian considerations by complementary pathways of refugee vulnerability and protection considerations should not be a limitation, given that the aim of complementary pathways is to merely to assist the attainment of existing durable solutions.

Where the GCR sets out in paragraph 7 the requirement for not only durable but also ‘sustainable’ solutions, complementary pathways represent an effective ‘adaptation to modern conflict and displacement situations’.[94] Providing protection for the ‘duration of a risk’ may not guarantee the attainment of a durable solution. However, it is important to recognise that the expanded and flexible options provided by these pathways can nonetheless yield net benefits to refugees in the form of increased self-reliance and increased access to work and education opportunities. Again, the implementation of complementary pathways is voluntary and subject to State discretion. Yet the non-binding nature of complementary protection pathways does not mean that States are wholly divorced from pre-existing international human rights and refugee law protection regimes.[95] Rather, State obligations to provide complementary refugee protection are sourced from international human rights treaties which include Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Articles 6 and 7 of the International Covenant on Civil and Political Rights.[96] Complementary pathways therefore present several ‘sustainable’ and ‘flexible’ opportunities for States to further their contribution to refugee protection. These increased opportunities importantly form part of an ongoing ‘journey to a durable solution’ and appropriately reflects the multi-faceted and multi-staged nature of modern human migration.[97]

Overall, realising the many potential benefits of complementary pathways is not necessarily straightforward. It involves balancing competing stakeholder interests, proactively creating flexible solutions where traditional efforts at sustaining durable solutions have failed and implementing protection safeguards to ensure that refugee rights to use these complementary pathways are respected.[98] However, I hold that assuming the role of complementary pathways as merely assisting and not overriding the attainment of a durable solution is made clear, complementary pathways form an important piece in the international refugee protection regime.

V CONCLUSION

It is not difficult to see how the current gap between the theoretical aims of the UNHCR defined durable solutions and their execution in practice means that more needs to be done to protect and facilitate the attainment of durable solutions for refugees. On face value, I hold that the GCR’s recommendations that prioritise both ‘durable’ and ‘sustainable’ solutions and the emphasis on flexible complementary pathways can better address these gaps and recognise solutions for multi-faceted refugee needs.[99] I have acknowledged that the diversity of stakeholder interests served by complementary pathways, coupled with the GCR’s lack of a legally-binding framework in assigning State responsibility, offers the potential for states to continue abrogating refugee responsibility in favour of their own interests. To realise the value of the GCR and complementary pathways in providing diverse and flexible solutions, and to avoid states masking ongoing failures at addressing prolonged refugee circumstances, the role of complementary pathways in assisting but not overriding the attainment of a durable solution must be clearly defined. It is only then that a balance can be struck between practicality and permanence in the international refugee protection regime consisting of the GCR, complementary pathways and durable solutions.

VI BIBLIOGRAPHY

A Articles, Books and Reports

Addo, Isaac Yeboah, ‘Refugees' Expectations of Durable Solutions to Their Problems: Deliberations from the Buduburam Camp in Ghana’ (2016) GeoJournal 81(3) 427

Aleinikoff, Alexander and Susan Martin, ‘Making the Global Compacts Work: What Future for Refugees and Migrants?’ (Policy Brief 6, Kaldor Centre for International Refugee Law, The University of New South Wales, 24 April 2018)

Arnold-Fernández, Emily, ‘National Governance Frameworks in the Global Compact on Refugees: Dangers and Opportunities’ (2019) 57 International Migration 188

Battjes Hemmes and Jane McAdam, ‘Complementary Protection in International Refugee Law’ (2008) Netherlands International Law Review 55(1) 101

Bradley, Megan, ‘Resolving Refugee Situations Seeking Solutions Worthy of the Name’ (Research Paper No 9/2019, World Refugee Council, March 2019)

Bradley, Megan, ‘Unresolved and Unresolvable? Tensions in the Refugee Regime’ (2019) Ethics & International Affairs 33(1) 45

Gilbert, Geoff, ‘Not Bound but Committed: Operationalizing the Global Compact on Refugees’ (2019) International Migration, 57(6) 27

Gleichert, Emily, ‘Global Apathy and the Need for a New, Cooperative International Refugee Response’ (2020) 16(1) Northwestern Journal of Law and Social Policy 119

Goodwin-Gill, Guy S and Jane McAdam, The Refugee in International Law (Oxford University Press, Third edition, 2007)

Grandi, Filippo, ‘The Global Compact on Refugees: A Historic Achievement’ (2019) 53 International Migration 23

Hansen, Randall, ‘The Comprehensive Refugee Response Framework: A Commentary’ (2018) 31(2) Journal of Refugee Studies 131

Harley, Tristan’ Global Compact on Refugees’ (2019) AQ Balmain, NSW 90(4) 36

Kusari, Kaltrina and Christine Walsh, ‘Challenging Repatriation as a Durable Solution: A Critical Discourse Analysis of Kosova’s Repatriation Strategy’ (2021) 21(1) Southeast European and Black Sea Studies 125

Martín, Carmen Gómez, ‘Rethinking the Concept of a “Durable Solution”: Sahrawi Refugee Camps Four Decades On’ (2017) Ethics & international affairs 31(1) 31

McAdam, Jane, Complementary Protection in International Refugee Law (Oxford University Press, 2007)

Omata, Naohiko, ‘The Complexity of Refugees' Return Decision-Making in a Protracted Exile: Beyond the Home-Coming Model and Durable Solutions’ (2013) 39(8) Journal of Ethnic and Migration Studies 1281

Van Selm, Joanne, ‘Complementary Pathways to Protection: Promoting the Integration and Inclusion of Refugees in Europe?’ (2020) 690(1) The ANNALS of the American Academy of Political and Social Science 136

Wood, Tamara, ‘The Role of ‘Complementary Pathways’ in Refugee Protection’ (Research Paper, Kaldor Centre for International Refugee Law, The University of New South Wales, November 2020)

B Treaties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 2 June 1987)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)

International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976)

Organisation of Africa Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature on 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974)

C UN and Other International Material

Executive Committee Conclusion No. 104 (2005), on Local Integration, Report of the 56th Session, UN Doc A/AC.96/1021

International Labour Organisation, ‘Guiding Principles on the Access of Refugees and Other Forcibly Displaced Persons to the Labour Market’ (2016) 29.

UN General Assembly, 2016 New York Declaration for Refugees and Migrants: Resolution/adopted by the General Assembly, 3 October 2016, A/RES/71/1

UN General Assembly, Statute of the Office of the United Nations High Commissioner for Refugees, 14 December 1950, A/RES/428(V)

UNHCR, Complementary Pathways for Admission to Third Countries (April 2019) (Key Considerations) <https://www.unhcr.org/en-au/complementary-pathways.html>

UNHCR, ‘Global Trends: Forced Displacement in 2016’ (2017)

UNHCR, Report of the United Nations High Commissioner for Refugees: Part II: Global Compact on Refugees, UN GAOR, 73rd sess, Supp No 12, UN Doc A/73/12 (13 September 2018) (“GCR”).

UNHCR, ‘The Three-Year Strategy (2019-2021) on Resettlement and Complementary Pathways’ (June 2019)

D Other

Aleinikoff, Alexander, ‘Panel discussion on ‘How Can we Support States to Receive Large Numbers of Refugees in a Safe and Dignified Manner?’ (Speech, UNHCR, 2017)

Expert Council of German Foundations on Integration and Migration, ‘What Next for Global Refugee Policy? Opportunities and Limits of Resettlement at Global, European and National Levels’ (2018)

McAdam, Jane, ‘Complementary Protection: Labour’s Point of Departure’ Inside Story (online, 3 December 2008) <https://insidestory.org.au/complementary-protection-labors-point-of-departure/>.


[1] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (“1951 Convention”); UN General Assembly, Statute of the Office of the United Nations High Commissioner for Refugees, 14 December 1950, A/RES/428(V) (“UNHCR Statute”).

[2] Megan Bradley, ‘Resolving Refugee Situations Seeking Solutions Worthy of the Name’ (Research Paper No 9/2019, World Refugee Council, March 2019) 7 (“Bradley”); UNHCR, ‘Global Trends: Forced Displacement in 2016’ (2017) 3, 24.

[3] UNHCR, Report of the United Nations High Commissioner for Refugees: Part II: Global Compact on Refugees, UN GAOR, 73rd sess, Supp No 12, UN Doc A/73/12 (13 September 2018) (“GCR”).

[4] 1951 Convention (n 1); UNHCR Statute (n 1) ch 1, para 1.

[5] UNHCR Statute (n 1) ch 1, para 1.

[6] Ibid.

[7] UNHCR, The Three-Year Strategy (2019-2021) on Resettlement and Complementary Pathways (June 2019) 7.

[8] Executive Committee Conclusion No. 104 (2005), on Local Integration, Report of the 56th Session, UN doc. A/AC.96/1021.

[9] Kaltrina Kusari and Christine Walsh, ‘Challenging Repatriation as a Durable Solution: A Critical Discourse Analysis of Kosova’s Repatriation Strategy’ (2021) 21(1) Southeast European and Black Sea Studies 125-126 (“Kusari and Walsh”).

[10] Ibid.

[11] Naohiko Omata, ‘The Complexity of Refugees' Return Decision-Making in a Protracted Exile: Beyond the Home-Coming Model and Durable Solutions’ (2013) 39(8) Journal of Ethnic and Migration Studies 1281, 1293.

[12] Isaac Yeboah Addo, ‘Refugees' Expectations of Durable Solutions to Their Problems: Deliberations from the Buduburam Camp in Ghana’ (2016) GeoJournal 81(3) 427.

[13] Omata (n 11) 1293-1294.

[14] Kusari and Welsh (n 9) 126.

[15] Ibid.

[16] Ibid.

[17] Bradley (n 2) 1.

[18] Ibid.

[19] Kusari and Welsh (n 9) 126.

[20] 1951 Convention (n 1) Preamble para 4.

[21] Tristan Harley, ‘Global Compact on Refugees’ (2019) AQ Balmain NSW 90(4) 36, 37.

[22] 1951 Convention (n 1).

[23] Organisation of African Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature on 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974) ("OAU Convention") art 5.

[24] Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, Third edition, 2007) 492 (“Goodwin-Gill and McAdam”).

[25] Ibid 491-492.

[26] Bradley (n 2) 5.

[27] Joanne Van Selm, ‘Complementary Pathways to Protection: Promoting the Integration and Inclusion of Refugees in Europe?’ (2020) 690(1) The ANNALS of the American Academy of Political and Social Science 136-137 (“Van Selm”).

[28] Bradley (n 2) 5-6.

[29] Van Selm (n 28) 148.

[30] Filippo Grandi, ‘The Global Compact on Refugees: A Historic Achievement’ (2019) 53 International Migration 23-24 (“Grandi”).

[31] UNHCR, ‘Global Trends: Forced Displacement in 2016’ (2017) 3, 14.

[32] Bradley (n 2) 1.

[33] Omata (n 11) 1292.

[34] Bradley (n 2); Van Selm (n 28)136.

[35] UN General Assembly, 2016 New York Declaration for Refugees and Migrants: Resolution/adopted by the General Assembly, 3 October 2016, A/RES/71/1 (“New York Declaration”).

[36] Randall Hansen, ‘The Comprehensive Refugee Response Framework: A Commentary’ (2018) 31(2) Journal of Refugee Studies 131, 132 (“Hansen”).

[37] Ibid; New York Declaration (n 35) annex 1 (‘Comprehensive refugee response framework’) para 18.

[38] Alexander Aleinikoff, ‘Panel discussion on ‘How Can we Support States to Receive Large Numbers of Refugees in a Safe and Dignified Manner?’ (Speech, UNHCR, 2017) <https://www.unhcr.org/events/conferences/59e627ee7/panel-discussion-support-states-receive-large-numbers-refugees-safe-dignified.html> (“Aleinikoff”).

[39] Carmen Gómez Martín, ‘Rethinking the Concept of a “Durable Solution”: Sahrawi Refugee Camps Four Decades On’ (2017) Ethics & international affairs 31(1) 31.

[40] Ibid.

[41] Aleinikoff (n 38); Hansen (n 36) 142.

[42] Hansen (n 36) 138-139.

[43] Ibid 132.

[44] Ibid; Grandi (n 30) 23.

[45] Grandi (n 30) 24.

[46] Hansen (n 36) 139.

[47] Grandi (n 30) 23.

[48] Ibid 23-24.

[49] Harley (n 21) 39.

[50] Ibid.

[51] UNHCR, The Three-Year Strategy (2019-2021) on Resettlement and Complementary Pathways (June 2019) 7; Tamara Wood, ‘The Role of ‘Complementary Pathways’ in Refugee Protection’ (Research Paper, Kaldor Centre for International Refugee Law, The University of New South Wales, November 2020) 18 (“Wood”).

[52] Jane McAdam, Complementary Protection in International Refugee Law (Oxford University Press, 2007) 40 (“McAdam”).

[53] Wood (n 51) 3.

[54] Van Selm (n 28) 148.

[55] UNHCR, Complementary Pathways for Admission to Third Countries (April 2019) (Key Considerations) <https://www.unhcr.org/en-au/complementary-pathways.html> (“UNHCR Key Considerations”); Alexander Aleinikoff and Susan Martin, ‘Making the Global Compacts Work: What Future for Refugees and Migrants?’ (Policy Brief 6, Kaldor Centre for International Refugee Law, The University of New South Wales, 24 April 2018) 4.

[56] Van Selm (n 28) 128.

[57] Wood (n 51) 7.

[58] McAdam (n 52) 40-41.

[59] Wood (n 51) 19.

[60] UNHCR Key Considerations (n 55) 10.

[61] Grandi (n 30) 24.

[62] Wood (n 51) 18.

[63] GCR (n 3) para 49.

[64] Ibid para 4.

[65] Ibid; Arnold-Fernández, Emily, ‘National Governance Frameworks in the Global Compact on Refugees: Dangers and Opportunities’ (2019) 57 International Migration 188, 189 (“Arnold-Fernández”).

[66] Emily Gleichert, ‘Global Apathy and the Need for a New, Cooperative International Refugee Response’ (2020) 16(1) Northwestern Journal of Law and Social Policy 119 (“Gleichert”).

[67] Harley (n 21) 40.

[68] GCR (n 3) para 4.

[69] Gleichert (n 66) 119, 129-130.

[70] Harley (n 21) 40.

[71] Ibid.

[72] Ibid.

[73] Hansen (n 36) 132-133.

[74] GCR (n 3) para 4; Gleichert (n 66) 129.

[75] Harley (n 21) 43.

[76] Geoff Gilbert, ‘Not Bound but Committed: Operationalizing the Global Compact on Refugees’ (2019) International Migration, 57(6) 27, 30 (“Gilbert”).

[77] Ibid; Megan Bradley, ‘Unresolved and Unresolvable? Tensions in the Refugee Regime’ (2019) Ethics & International Affairs 33(1) 45.

[78] GCR (n3) para 103.

[79] Ibid paras 5, 7, 48, 102, 103.

[80] Ibid para 103.

[81] Ibid.

[82] Gilbert (n 76) 27-30; Arnold-Fernandez (n 65) 190.

[83] Van Selm (n 28) 150.

[84] Wood (n 51) 21.

[85] Ibid.

[86] Wood (n 51) 27.

[87] Bradley (n 2) 6.

[88] McAdam (n 52) 40.

[89] Hemme Battjes and Jane McAdam, ‘Complementary Protection in International Refugee Law’ (2008) Netherlands International Law Review 55(1) 101, 102.

[90] International Labour Organization, ‘Guiding Principles on the Access of Refugees and Other Forcibly Displaced Persons to the Labour Market’ (2016) 29.

[91] Bradley (n 2) 7.

[92] McAdam (n 52) 40.

[93] Bradley (n 2) 7.

[94] Expert Council of German Foundations on Integration and Migration, ‘What Next for Global Refugee Policy? Opportunities and Limits of Resettlement at Global, European and National Levels’ (2018) 22-23.

[95] Gilbert (n 76) 30.

[96] Jane McAdam, ‘Complementary Protection: Labour’s Point of Departure’ Inside Story (online, 3 December 2008) <https://insidestory.org.au/complementary-protection-labors-point-of-departure/>.; G Goodwin-Gill and McAdam (n 24) 296; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 3 (‘Convention against Torture’); International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) art 6, 7(‘ICCPR’).

[97] Wood (n 51) 27.

[98] Ibid.

[99] Expert Council of German Foundations on Integration and Migration, ‘What Next for Global Refugee Policy? Opportunities and Limits of Resettlement at Global, European and National Levels’ (2018) 22-23.


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