"toward the reformulation of international refugee law," bill frelick, refuge: canada's periodical...

8/6/2019 "Toward the Reformulation of International Refugee Law," Bill Frelick, Refuge: Canada's Periodical on Refugees, Vo

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Toward the Reformulation of International Refugee Law

On May 18-21,1995, forty internationallawyers, social scientists, governmentofficials, and representatives o intergov-ernmental and nongovernmental organi-zations gathered in Toronto to participatein a collaborative exercise, termed the Re-formulation Project, to analyze and cri-tique a proposed reformulation of theinternational refugee regime. GeneralRapporteur, Bill Frelick, presents this syn-thesis of the Meeting's workshop andplenay discussions.The Reformulation Project IdeaThe post-Cold War refugee reality isincreasingly characterized by the no-tion of non-entrie, the containment ofrefugee flows either in the country oforigin or in the region of origin. Keep-ing refugees out of potential receivingcountries, through various visa andborder controls, prevents refugeesfrom availing themselves of the pro-tection of international and domesticrefugee law that entry would bring.Since World War 11, most Northernstates have built a link between refu-gee protection and immigration. Per-sons recognized as refugees, usually,have been allowed to remain in hoststates on a permanent basis. However,even those societies most open to im-migration, for example, the UnitedStates and Canada, have signalledtheir unwillingness to continue highlevels of immigration generally, andtheir specific unwillingness, to be opento the arrival of asylum-seekers. Be-cause the link between refugee protec-tion and immigrant benefits has beenaxiomatic, the effect has been for gov-

Bill Frelick, General Rapporteur to theReformulation Conference, is a Senior PolicyAnalyst with the U S .Comm ittee or Refugees,Washington,D.C.

Symposium ReportBill Frelick

ernments to erect barriers to preventasylum-seekers from entering for fearthat the governments would then beobliged to adjudicate the asylum-seek-erst refugee claims and provide per-manent immigration benefits to thosequalifying as refugees.

Related to the increased incidenceof non-entrke are two factors under thecurrent refugee regime that create in-equities in the treatment of refugees.First, protection is being proffered to asmaller and smaller percentage of theworld's refugees who have the goodfortune, means, or talent to surmountthe obstacles to entry, gain a footholdin a receiving state, and avail them-selves of that state's protection. Whobenefits from protection is less related

raphy, find refugees crossing their bor-ders, and are left to carry a burden notof their own making with inadequatesupport from the rest of the interna-tional community.

The problem confronted by the Reformulation Project, therefore, is toprovide a twofold basis for enhancedinternational coordination to protectrefugees: first, by guaranteeing themunhindered access, the right to fleetheir countries and to seek asylum inother countries based on a broaderrefugee definition; and second, toshare burdens and responsibilitiesamong states more equitably.

The central feature underlying theReformulation Project is the notionthat, as a rule, refugee protection ough. rotection is being proffered to a smaller and smaller percentageof the world's refugee s who have the good fortune, means, or talentto surmount the obstacles to entry, gain a foothold in a receivingstate, and avail the m ihv es of that state's protection.

to a comparative index of risk of perse-cution than to the ability of the claim-ant to enter and to negotiate complexasylum adjudication systems. The ten:dency of governments has been notonly to restrict access to asylum-seek-ers physically and legally, but also tointerpret the refugee definition evermore narrowly so that the number ofasylum-seekers who succeed inentering and who are recognized asrefugees appears to be a shrinking pro-portion of the total number of refugeesand would-be refugees in need of pro-tection worldwide. This narrowing ofthe refugee definition, as it is inter-preted by states, ironically comes at atime in history when a broader defini-tion is called for. The second conse-quence of the current regime is that adisproportionate burden is visited oncountries or regions of first asylum,who, due to the happenstance of geog-

to be temporary, and that permanenprotection ought to be considered asthe exception, the solution for residuacases for whom, after a period of timerepatriation in safety and dignity isnopossible. The Project also insists that amore equitable and binding system ofinternational burden sharing, bothhuman and fiscal, is necessary to enable states of first asylum to keep theidoors open. Finally, the Project calls fogreater emphasis on laying thegroundwork for eventual repatriationthrough training and development.Temporary ProtectionThe centerpiece of the ReformulationProject enterprise is the idea that refugee protection ought to be conceivedof as a temporary palliative to providea broad level of protection to refugeefor a limited period of time. A balancingact iscalled for between, on the on

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hand, ensuring that temporary protec-tion is humane, and, on the other, notencouraging the development of rootsthat will compromise the goal ofeventual repatriation to the country oforigin.The workshop discussion, as well asthe Study in Action, seemed focusedmore on the criteria for the humane-ness of temporary protection than onthe implications this might have onencouraging voluntary repatriation ata later point in time. The willingness ofstates to embrace the ReformulationProject, however, is predicated on theidea that temporary protection will bethe norm. Since, heretofore, perma-nent protection has been the norm(even for groups who supposedlywere being offered only temporaryasylum), governments will need to beconvinced (against the body of avail-able empirical evidence) that protec-tion can be viable on a temporary basis,and that temporary protection will notsimply mean delayed immigration; a"slow way of saying 'yes' to perma-nent admission," asone observer put it.

The two critical issues in this regardseem to be (1) the duration of tempo-rary protection and (2) freedom ofmovement for persons enjoying tem-porary protection-the time/spacecontinuum, so to speak.Both the workshop and the Study inAction were committed to guarantee-ing refugees in temporary protectionthe full panoply of rights enshrined ininternational human rights instru-ments. The commitment to upholdingbasic human rights standards wasviewed as unconditional, regardless ofthe possible effect on the willingness ofrefugees to repatriate. Nevertheless, itwas recognized that some govern-ments, particularly in the South,would be reluctant to move away fromrestricting the movement of refugees,as this relates to security concerns, theprotection of local markets, deterringlocal integration and paving the wayfor repatriation as the preferred dura-ble solution. In the North, as well, itwas pointed out that integration pro-duces non-return; Salvadoreans in theUnited States were cited as an example

of a group provided temporary pro-tected status who would not voluntar-ily return after peace was restored inthe home country. The tension be-tween states' interests in restrictingrefugee movement and the conse-quences of such restrictions n terms ofhuman rights and psychosocial needswas not fully explored or resolved.The Study in Action proposed amaximum temporary protection dura-tion of not more than five years. Forthose persons who are not able to re-turn after five years, permanent resi-dence would be offered in the countryof temporary protection or in a thirdstate. This also involves a balancingbetween the time generally requiredfor conflict resolution and the desire tolimit the extent to which refugees are

nent residence solution would takeplace somewhere other than the coun-try of temporary asylum)? There wasalso some concern that a fixed datecould precipitate refoulement; as thefive-year deadline approached, statesmight be more inclined to decide (orpress an international supervisoryagency to decide) that conditions weresufficiently improved for refugees toreturn, even if that was not the case.

The five-year duration of temporaryprotection might be a hard sell in Af-rica, where, in effect, temporary pro-tection is the indefinite condition ofmost refugee populations. The trade-off is and has been one of internationalfinancialassistance to host countries inreturn for their support for refugees. Ifrefugees who cannot return are

Who benefits from protection is less related to a comparative indexof risk of persecu tion tha n to the ability of the claimant to enter andto negotiate complex asylum ad judication systems.in legal limbo. Allowing for exceptionsfor vulnerable groups who could beoffered permanent residence sooner,five years was considered the appro-priate balance that would be longenough to allow situations in the homecountry to be resolved and shortenough to account for the psychosocialneeds of the refugees.Several questions remained. What isthe utility in setting one, universalstandard of five years as the maximumduration for temporary protection? Ismore flexibility needed on a case-by-case basis, so that, for example, whenrefugees and host populations are cul-turally similar and a high level of po-litical solidarity exists, (such as whenIran and Pakistan hosted Afghan refu-gees in the 1980s) ten years would be aduration that would not do any harmto the psychosocial needs of the refu-gees? However, would the obversehold? If a host country was hostile andpolitically and/or culturally incom-patible with the refugee populationwould that mean that a period of lessthan 5 years could be set as the maxi-mum duration? Would this give statesan incentive to be less hospitable torefugees (assuming that the perma-

deemed to be permanent residents af-ter five years, and if international refu-gee assistance funding stops at thattime, then the African states that hostlong-term refugee populations standto lose significant revenues throughthe suggested reformulated system.

Although the workshop discussedsome studies analysing durations ofrefugee stays in the 1970s, it did nothave enough empirical evidence aboutthe numbers and types of refugeeswho might not be able to return afterfive years to draw conclusions aboutwho and how many might requiredurable solutions other than repatria-tion.

Termination of temporary protec-tion was not discussed in great detailin either the workshop or plenary ses-sion. The Study in Action did addressmeasures that could be taken to avoidthe necessity of mandated repatria-tion, which would be considered theoption of last resort. Little attentionwas paid, however, to the standardsfor the terminationof refugee status forformer refugees or for rejected asylum-seekers, and for the methods andstandards governing removal for thoseunwilling to repatriate voluntarily.

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A major concern expressed in theworkshop, with implications for theviability of the Reformulation Projectitself, is whether there could, in fact, bea quid pro quo, whereby the willingnessof states to adopt temporary protection(and other features of the Reformula-tion Project) would, in fact, be linked tothe dismantling of non-entrke barqiers.The workshop reached a consensusthat the adoption of temporary prgtec-tion as a norm would not, in itself, in-duce states tolower non-entrkebaraiers.The response of European states torefugees from former Yugoslaviashows that the creation of a temporaryprotection regime does not, in itself,result in open borders. In fact, subse-quent to the creation of a temporaryprotection mechanism, visa restric-tions were imposed on Bosnians by

tus determination, closed refugeecamps, and non-entrke barriers?Repatriation and DevelopmentAssistanceIf the norm of protection is to be tem-porary, then strong emphasis needs tobe placed on repatriation, and how itmight be promoted and facilitated.TheStudy in Action provided a useful,though limited, model for establishinga system of development that wouldfoster repatriation. Its "bottom-up"model placed emphasis on the creationof grassroots refugee developmentcouncils and local development coun-cils to coordinate sustainable develop-ment plans for returnees and"stayeesn-the local populations thatdid not become refugees. This model,though promising in itself, seemed

The central feature underlyin g the Reform ulation Project is thenotion that, as a rule, refugee protection ough t to be temporary, andthat permanent protection ought to be considered as the exception,the solution for residual cases for whom , after a period of time,repatriation in safety an d dignity is not possiblemost European states. However, it wasalso pointed out, that the temporaryprotection scheme adopted in Europein response to the Bosnian crisis didnot include a responsibility sharingagreement, creating an incentive toimpose access barriers for fear thatopen countries would receive adispro-portionate share of the burden, even ifon a temporary basis. This view sug-gests that the Reformulation Project, iffully implemented, could have thehoped for result in allowing unre-stricted access for refugees. However,the unwillingness of European statesto enter into a responsibility sharingagreement for Bosnians in temporaryprotection suggests the difficulty offully implementing the proposal.

This raises the following questionfor the proponents of the Reformula-tion Project: What would be accom-plished if states choose certain featuresof the Project that they find attractive-such as temporary rather than perma-nent protection-and yet maintain astrict refugee definition, sovereign sta-

weighted in the direction of rural refu-gees from the South fleeing from civil-war related conflicts. Lacking weremodels for promoting repatriationamong other important components ofthe refugee reality, such as urbanrefugees.

The construction of a South-Southdevelopment/repatriation model,while useful in itself, is not a sufficientbuilding block on which to erect theReformulation Project edifice. Atten-tion needs to be paid to models forstimulating voluntary repatriationfrom North to South (which is likely tobe the more difficult enterprise), ifNorthern governments are to be con-vinced to buy into the reformulatedrefugee regime. The workshop, whilecharacterizing the Study in Actionmodel as "good," suggested that itmight be overly optimistic and-as isoften the case with models-some-what too neat a formulation that mightfail to take politics and other humanfoibles into account. It was pointed outthe likelihood of tensions between lo-

cal host populations and refugees andwithin the refugee communities themselves.

Concerns were raised in the workshop that the Study in Action, in keeping within the parameters of theReformulation Project, did not addresthe issue of root causes. Ironicallyhowever, the emphasis on development does implicitly suggest an economic "root cause." The suggestionthat development is an indispensablecomponent for solving the refugee dilemma implies that the grounding fothe displacement is economic. This assumption might need further examination. It would seem to be moreconsistent with the current-or reformulated-refugee definition to linkrepatriation with improvements inhuman rights conditions and to placegreater emphasis on conflict resolution, perhaps utilizing similar refugeeand local development council models

The Study in Action briefly touchedon the criteria for safe and dignifiedreturn. In one instance, it articulated astandard of a "clear and imminendanger to the safety of returnees" athe basis for determining the advisability of repatriation, and suggested identifying "repatriation enclaves" towhich refugees who desired to returncould go when "pervasive conflict"continues in the count ry of originThese ideas, controversial in themselves, were not addressed by theworkshop because they were considered to be outside the scope of theworkshop's mandate.Responsibility SharingIn order to dismantle non-entrke barriers and toconvince states to allow refugees access to temporary asylum ontheir territories, the ReformulationProject needs to develop a system thawill assure states that opening theiborders to refugees will not result inoverwhelming refugee flows withwhich they alone will have to cope.

The workshop proposed that statewould identify "risk-regions" on fluid and ad hoe basis as a means osharingresponsibility for hosting refugee populations. The risk-regio

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would be supported by a universalsystem of fiscal burden sharing. TheStudy in Action argued that a moreuniversalized system for sharing re-sponsibility for hosting refugees wasnot tenable, citing the ad hoc nature ofrefugee movements and host state re-sponses, and the interests of states inmaintaining regional security. Alsocited in support of this thesis was theexample of Africa, where the concernof African states seems to be less withsharing responsibility for hosting refu-gee populations than with receivingadequate financial support to accom-modate those populations and to easethe burden on the local host popula-tion.

According to the risk-region model,those states that perceive the threat ofunmanaged refugee migration wouldjoin together in regional groupings toattenuate the impact of such migrationby sharing responsibility for hostingrefugees among themselves. Partnersin a risk-region would be more likelythan those outside the region to bemotivated to address the resolution ofrefugee-producing conflicts, as well aslonger-term development as a meansto encourage repatriation.

There were unresolved questionsabout how responsibilities for hostingrefugees would be allocated amongstates and concern about refugees be-ing treated as commodities as govern-ments and international agenciesnegotiated moving them from sites ofarrival to sites of temporary protec-tion. How, for example, would coun-tries of first asylum respond if refugeesrefused to be moved from the site ofarrival to other countries of temporaryasylum? Assuming strict adherence tothe principle of non-refoulement, couldrefugees be involuntarily transferredamong asylum states according to re-sponsibility sharing agreements theymight enter into?

A related question is how the alloca-tion of responsibility sharing amongstates would relate to the dismantlingof non-entree barriers. If the Reformu-lation Project's system of refugee re-sponsibility sharing is intended to beminimally coercive, and if refugees are

free to move, then it could be antici-pated that far greater numbers of refu-gees (largely from the South) wouldlikely move to more attractive states ofasylum (largely in the North), particu-larly in the absence of barriers to theironward movement. Would refugeeresponsibility sharing agreements in-volve the return/relocation of suchrefugees to the region of first asylum?If so, does this mean, in effect, that non-entrke barriers would only be objec-tionable where direct refoulement wasimminent, i.e., in countries of firstasylum?

The workshop felt that rules forrefugee responsibility sharing wouldhave to be ad hoc, and that it would beunrealistic to think that responsibilitylevels could be set and stipulatedthrough a treaty-based obligation.Nevertheless, the workshop did dis-cuss the factors that would be used asprincipled criteria for determining re-sponsibility sharing obligations, basedlargely on determinations of eachstate's absorptive capacity.

There was some concern that theregional approach, in effect, amountedto a "buying out" of refugee responsi-bility sharing on the part of Northernstates; contributing money instead ofmaking their territories available torefugees themselves. While thereseemed to be general uneasiness withthis prospect, and while it seemed con-trary to the original intent of the Refor-mulation Project, there also appearedto be a grudging consensus that itwould be unlikely to expect states toshare universally in hosting of refugeepopulations, and that a "buy out"might be the best concession that couldbe won from states unwilling to hostrefugees within their territories.

In response to this concern, onemodel that might be explored furtherwould be to employ a regional ap-proach for hosting the bulk of refugeesduring their first five years of tempo-rary protection. However, for the re-sidual population for whom a durablesolution is needed after five years, apermanent resettlement off-take tothird countries outside the regioncould be elaborated. This is the ap-

proach that has been followed (moreor less) for Southeast Asian refugees,and serves as an example of responsi-bility sharing among state actorswithin and outside a risk-region.Elaborating such a model in greaterdetail would address an issue that theReformulation Project has tended todownplay: What will be the signifi-cance of the "residual" refugee popu-lations who can't go home? Howshould permanent exile be factored inas a realistic outcome for significannumbers of the world's refugees?Evena system that is based principally onthe goal of temporary protection needsto devise a credible solution for thoseneeding permanent protection in exileFiscal Burden SharingThis Study in Action and workshopcovered much of the same ground asthose considering responsibility shar-ing, in terms of trying to develop amodel for fair and equitable distribu-tion of the fiscal burden of caring forrefugees so that no state or regionwould be disproportionately saddledwith this obligation. Although theStudy in Action and the workshoptook a somewhat more abstract ap-proach toward the development ofsuch a model, they appeared to arriveat a similar place as those dealing withresponsibility sharing (or, at least theGeneral Rapporteur will seek to iden-tify and synthesize the complementaryaspects of the two models).

The distributive model proposed inthe Study in Action and modified bythe workshop to include the concept ofstates as stakeholders, puts a greateremphasis on regional responses andresponsibility than a purely multilateral/universalist one, but, like the riskregion model, includes a broaderconcept of region than would be conceived of according to a pure allianceconstruct.

The Study in Action takes the Reformulation Project in a direction that wasnot part of the original conception ofthe project-promoting the idea ofpreventive humanitarian action. Although the post-Cold War politicalandscape is littered with examples of

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the failure of preventive humanitarianaction, and the misuse of this conceptto bolster and rationalize the currentinternational non-entrke regime, theidea of preventive humanitarian ac-tion seems nevertheless to be an ele-ment that ought to be factored into asystem of risk-region managementand fiscal burden sharing. A cost-ben-efit analysis can't help but find preven-tive humanitarian action to be anappealing idea, given the immensecosts of full-blown humanitarian dis-asters. As conceived by the Study inAction, preventive humanitarianaction would also require greater coor-dination between relief and develop-ment, an idea that was also promotedin the Study in Action on Repatriationand Development Assistance.

The Study in Action's emphasis oncountries of origin, although rejectedin the original Reformulation Projectdesign, seems to be a logical extensionof the Responsibility Sharing work-shop's idea of a risk-region by includ-ing within the region of risk therefugees' country of origin. This modelalso seems to relate quite favourably tothe ideas advanced in the Study inAction and workshop dealing with re-patriation and development, on theneed to pave the way for repatriationthrough the creation of sustainabledevelopment projects in the country oforigin. If international financial bur-den sharing is going to include the costof development in the country of ori-gin as part of repatriation schemes, itseems only logical that the allocationof such costs would also factor in pre-ventive measures in countries oforigin.

A number of issues remained unre-solved relating to fiscal burden shar-ing. A major selling point of theReformulation Project has been theanticipated cost savings if states are nolonger required to expend enormousfunds on elaborate refugee determina-tion procedures and non-entrke mecha-nisms. Although some states seemedto have successfully transferred sav-ings from these budgets into refugeeassistance and development pro-grams, it was clear that for many states

a direct trade-off of savings from onedepartmental "account" to anotherwould not be possible.

How then would funds be raised tomake the Reformulation Project sys-tem work? The workshop and the ple-nary session suggested someinteresting possibilities. But the focusmight have been too narrow. Althoughthe workshop's mandate was fiscalburden sharing, this should be con-ceived broadly to include non-cash re-sources, such as labour, goods, andland, that would need to be included inany allocation/assessment of stateburden sharing contributions.

Also left unresolved was whethercontributions ought to be assessed aspart of membership requirement in theUN or whether, as is currently the casewith UNHCR, the contributionsshould be voluntary. Although theoriginal concept of the ReformulationProject was that a binding system ofassessed contributions was required,several participants questionedwhether a binding system would suc-ceed in raising any more funds thanthe current voluntary pledge/dona-tion system. It seemed that more studywas needed on this question to deter-mine which method was likely to re-sult in greater and more consistentsupport for UNHCR (or some newlyconceived international refugeeagency).International AdministrationThis workshop decided early on thatthe form of any international supervi-sory agency (ISA) should follow itsfunction, and that, since the workshopdid not have the benefit of the con-struction of the other building blocks,they could not yet agree upon an ap-propriate administrative structure forthe enterprise as a whole. Neverthe-less, the workshop was able to reachconsensus on several key points fromwhich the beginnings of an adminis-trative structure could be discerned.The workshop participants had seri-ous reservations that a universal insti-tution could or should be responsiblefor the whole status determinationprocess, the allocation of refugees

among states for temporary protec-tion, or the return of refugees no longerin need of protection or rejected asy-lum-seekers.

The workshop identified the cen-trality of states in any refugee regime,and concluded that any ISA would bestate-driven, since states would notconcede what they see as core sover-eign state functions, including deci-sions on status determination andimmigration and border controls.

The Reformulation Project assumesa simpler, more inclusive refugee defi-nition that would make for easier andcheaper status determination, espe-cially through group recognition. Butwhat about negative determinations?The workshop concluded that nega-tive determinations would have to beindividualized and include due proc-ess guarantees that would meet basicfairness criteria. The ISA could moni-tor and coordinate status determina-tion, but the actual adjudicatoryfunction, the workshop indicated,would remain a state responsibility.Similarly, the workshop felt that theISA would have to steer clear of anyoperational role in returning personsnot in need of protection, as assuminga police function would undercut itsprotection mandate.

These conclusions were reachedbased on considerations both of sover-eignty and cost-effectiveness. Al-though the ISA would not have anoperational role in status determina-tion or removals, the workshop sug-gested that the ISA should have astrong advisory role. It suggested thatthe ISA's role could include issuingstatements on positive groupdeterminations, issuing proceduralguidelines, and giving advice on par-ticular cases. The importance of re-gionalism in restructuring the refugeeregime into a workable system was atheme that ran through most work-shop discussions, including this oneThe workshop participants arguedthat states would have more owner-ship over a system administered on aregional basis, resulting in greater efficiency and more generous standards(as in the case of the OAU definition)

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-The workshop cautioned, however,

that the model of regionally basedrefugee responsibility sharing pro-posed in the Responsibility SharingStudy in Action could result in re-gional confinement by coercivelymaintaining refugees in one region.The workshop maintained that the re-gionalization of the system had to belinked to the principle of free access.Given other proposals currently underdiscussion (the "Reception in the Re-gion of Origin" project of the Intergov-ernmental Consultations on Asylum,Refugee and Migration Policies in Eu-rope,North America and Australia, forexample), this concern ought to belooked at more closely.

The issue of sovereignty went to theheart of the Reformulation Project.Some argued that states would neveraccept an ISA that could tell them whoand how many refugees to accept. TheProject rests on the idea that stateswould be willing to make such a com-promise if the protection offered weretemporary and the costs shared. Withsuch a limited track record to draw onto show the success of temporary pro-tection schemes, however, the onus ison the Project to convince govern-ments through the force of argument-logic, morality, and politicalbenefit-of its validity and viability.In any event, consensus seemed togel around the concept of the ISA-inall likelihood, a reformed UNHCR-as a coordinating institution whoserole would be defined, largely, asmaintaining consistent and universalstandards of refugee protection andresponsibility through a regionalizedsystem of consensual participationamong states. Greater cooperationamong states toward a regime of en-hanced protection could be won ifstates were convinced that their obli-gations would be temporary and equi-tably shared.ConclusionThe workshops were not intended toformulate resolutions, nor was the fi-nal plenary expected to vote or other-wise arrive at a concluding documentor statement. The observations

expressed in the final plenary reflectedthe personal views of thosearticulating them, making it difficultto draw a sense of consensus from theparticipants.

Much of the discussion focused onthe political context in which the dia-logue regarding reformulation of in-ternational refugee law is taking place.If anything approaching a dissentingconsensus to a major thrust of the Re-formulation Project could be said tohave emerged among participants inthe symposium, it was a sense of thedanger of opening the Pandora's Boxof the Refugee Convention (and Proto-col) for fear that in the present politicalclimate a broader refugee definitionwould fail and that a more restrictivedefinition could be fashioned. Somesuggested that the Convention hasmore flexibility, as written, than theReformulation Project would suggest,and that it can be interpreted more lib-

sponse of governments to the Project.Would states be convinced by the logicof the Project? Fundamentally, wouldthey be willing to sacrifice some oftheir sovereign prerogatives-prima-rily in the area of status determinationand loosening of immigration controlsfor asylum-seekers-in return for thebenefits of a new regime based on tem-porary protection and burden sharing?How receptive would they be to theInternational Supervisory Agency if itwas able to fulfill the roles conceivedon its behalf by the ReformulationProject?

The root of at least some of the am-bivalence towards the ReformulationProject seemed to be a political equa-tion suggesting that the more attrac-tive the concept could be made toStates (more specifically, the Northernstates), the less palatable it might be-come to refugee rights advocates.Some saw a danger that the Reformu-

There was concern that if temporary protection became the norm,the m odel for ma intaining refugees in temporary protection wouMgravitate toward s one of isolation and restriction, even detention,rather than empow erment and integration.erally or more restrictively, dependingon the political will of those interpret-ing it. Creating a new instrument, itwas suggested, would not in itself es-tablish such political will. It was alsoargued that the Convention still hasrelevance and utility as a critical instru-ment for confronting restrictive ac-tions by States.

Others observed, however, thatgovernments are moving forward invarious ways to devise a more restric-tive refugee regime that marginalizesmost of the world's refugees and wid-ens the gap between North and Southin shouldering the refugee burden.According o this view, the Reformula-tion Project is unlikely to cause dam-age to refugee rights, and might havethe benefit of presenting States with amore coherent response that satisfiestheir basic concerns.

Regardless of their views about themerits of the Reformulation Project,the participants, generally, seemed tobe keeping an eye on the probable re-

lation Project would be taken in bitsand pieces, rather than as a whole, andthat it ran the risk of providing schol-arly legitimacy to governments look-ing for a rationale for not providingpermanent asylum, but having no in-terest in dropping barriers to accessnor in broadening the refugee defini-tion or sharing responsibility for refu-gees more equitably. There wasconcern that if temporary protectionbecame the norm, the model for main-taining refugees in temporary protec-tion would gravitate towards one ofisolation and restriction, even deten-tion, rather than empowerment andintegration. This would be based onempirical evidence that integrationproduces non-return. On its face, itseems self-evident that an empoweredand integrated refugee is less likely toreturn voluntarily (except in caseswhere he or she is motivated to do sofor ideological or personal reasons)than a refugee who has been segre-gated from the host society. Could

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states be convinced to "buy" a bindingconcept setting standards for treat-ment of refugees in temporary protec-tion that would meet the requirementsof refugee rights advocates? Or wouldthat price be too high, in that theymight lose out in their ultimate goal ofseeing that refugees do not remain per-manently? Ultimately, the decidingfactor for states inconsidering whetherto embrace the Reformulation Projectmay wellbe the extent to which it bindsor does not bind them to certain princi-ples and actions.

Ironically, the deciding factor forrefugee rights advocates in deter-mining whether or not they willbe ableto endorse this Project may well alsohinge on the question of free choice.However, in their case, this refers notto the choice exercised by a state in thename of sovereignty and national in-terests, but rather to the free will andintegrity of the individual refugee. Towhat extent can the ReformulationProject be structured to achieve its ob-jectives of temporary protection andrepatriation on a voluntary basis? Towhat extent would the Project have torely on coercion to achieve its objec-tives? The prospect of moving refugeesto locations that are not their preferreddestinations, as part of responsibilitysharing agreements, coupled with en-forced removals upon the expirationof temporary protection status, couldmake it less attractive to refugee rightsadvocates as an alternative to thepresent, flawed system. The perceivedrisk would be that this approachstrengthens the hands of states to treatrefugees and asylum-seekers as theywish, without taking their interestsand choices into account.

There are a number of elements ofthe Reformulation Project that call formore extensive consideration as theProject develops. Among them wouldbe a discussion of the standards andprocedures that have yet to be devel-oped for safe and dignified return.What constitutes a dignified return?Does this require an examination of therelative importance of voluntarinesson the part of refugees? The Project'sproposed new standard for a refugee

definition, replacing the well-foundedfear of persecution standard with amore easily decided "serious harm"standard based on the "ability of thestate to protect", was not discussed indepth in the May symposium. Al-though there was considerable discus-sion regarding repatriation forrefugees after it is safe to return, as wellas discussion regarding prima faciepositive group determination, little at-tention was paid to persons deter-mined not to be refugees. The dueprocess rights of such persons, and thecosts associated with appeals and re-movals of those "screened out", needto be explored in greater detail.

The symposium was organized forthe purpose of subjecting the Reformu-lation Project to careful and criticalexamination. As a result, comments inthe final plenary often focused on par-ticipants' reservations and objections.Few, however, questioned its critiqueof the limitations of the present regime.In moving from critique of the old toconstruction of a new regime, how-ever, the Reformulation Project is nowin the difficult stage of ascertainingwhether the proposal will be able tostand as an alternative system, testedagainst whatever realities it might en-counter. As a result of this scrutiny,some elements will be revised. For ex-ample, the Reformulation Project islikely to accord more weight to re-gional structures of burden sharing asbeing more consistent with practicalrealities, as opposed to the more ab-stract and universal idea originallyproposed.

As it now shifts to respond to real-world needs, it becomes increasinglyevident that the Reformulation Projectis not conceived as an ideal regime or alegal laboratory creation. It comesabout and is being developed, rather,as a result of and in response to the veryreal challenges thrust upon interna-tional refugee law in the 1990s due tothe failure of the present regime topro-vide adequate protection. It ought not,therefore, to be held to a standard thatrequires it to demonstrate a direct ben-efit to all the world's refugees and asy-lum-seekers. Rather, its value ought to

be judged according to the extent thait suitably addresses the situations andneeds of the majority of the world'srefugees, who, it is argued, do flee situations that are likely to be resolvedwithin a five-year period, and whoreasonably, could be expected to return if refugee status did not carry apresumption of permanent exile. TheReformulation Project has the flexibility to allow for exceptions for refugeeneeding permanent solutions othethan repatriation. However, in general, through prima facie groupdeterminations and temporary protection, the Reformulation Project is seenas providing a broader (if shallowerlevel of protec tion for most of theworld's refugees, at the same time as iwould limit some of the benefits fothat small percentage of the world'srefugees who have successfully navigated non-entrke barriers, undergoneindividualized asylum proceduresand been granted permanent immigration status: "ReducingtheCadillacs fothe few, increasing the bicycles for themany."

Even if the Reformulation Projeccould be adopted precisely as conceived, there will be those who wilnever stop advocating for a refugeerights regime that would represenanything less than a Cadillac for alasylum-seekers and refugees, and whowill fault the Reformulation Project foits willingness to advocate for less thanthat ideal. So, we return to our startingpoint-the political dimension. Refugee law is not conceived (or reconceived) in a political vacuum. If, inreality, first asylum is being deniedbecause a substantial proportion ofrefugees and would-be refugees arebeing denied access even to temporaryprotection, and if the purpose of theReformulation Project is to devise asystem that allows persons faced withserious harm in their home countriesto universally seek and enjoy protection from such harm, then it deservethe careful and thoughtful consideration of nongovernmental and state actors alike, who, together, will fashionthe new refugee regime reality.

Refuge, Vol. 15, No. 1 (January 1996

"toward the reformulation of international refugee law," bill frelick, refuge: canada's periodical...

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