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University of New South Wales Law Journal Student Series |
THE GLOBAL COMPACT ON REFUGEES: ‘EQUITABLE’ RESPONSIBILITY-SHARING IN AN INEQUITABLE GLOBAL ORDER
ASHLEY LIEU
In December 2018, the United Nations General Assembly adopted a resolution affirming the Global Compact on Refugees (‘GCR’).[1] The Compact is a framework which provides a basis for more equitable and predictable responsibility-sharing among all United Nations (‘UN’) Member States towards the protection of refugees.[2] This renewed commitment to international cooperation was seen as urgently needed in the face of an alarming rise in forced displacement around the world, including in particular, the Syrian Refugee Crisis which corresponded with the European Migration Crisis.[3] The severity of the problem may also be realised by the unanimous adoption of the 2016 New York Declaration for Refugees and Migrants by the UN General Assembly,[4] marking a political commitment of ‘unprecedented force and resonance’.[5] With the recent publication of the three-year progress Indicator Report on the GCR,[6] and the surpassing of 100 million forcibly displaced people worldwide for the first time in 2022,[7] this article will take the opportunity to critically re-examine the Global Compact on Refugees and consider whether its objectives are achievable and realistic, or whether the Compact has failed in its aim to better protect refugees and ensure more equitable responsibility-sharing among States.
The GCR Indicator Framework was established as a means of measuring and reviewing the progress of the Compact towards achieving four key objectives. These are – to ease pressures on host countries; enhance refugee self-reliance; expand access to third country solutions; and to support conditions in countries of origin for return in safety and dignity.[8] However, while the GCR Indicator Framework is valuable and informative in its own right, this article argues that in order to truly engage with the question of whether the Compact has contributed to more equitable responsibility-sharing, a Third World Approach to International Law (‘TWAIL’) must be adopted. This is because the Global South is disproportionately affected by forced displacement.[9] Not only do the majority of refugees originate from the Global South, an overwhelming proportion of the total population of refugees are hosted in low and middle-income countries.[10]
All the while, the Global North has persistently maintained a regime of non-entrée and externalisation which effectively has kept refugees outside the territories of developed countries and forces the Global South to shoulder the bulk of the responsibilities for hosting and protecting refugees.[11] Ultimately, as poorer States must expend their resources on discharging these humanitarian obligations, the Global South continues to be impeded in their progress towards development. In turn, this perpetuates the divide between the economic North and South, and further entrenches the dominance, privilege, and wealth of developed and Western nations as established during the colonial era by means of violence and exploitation.[12]
Thus, in the inquiry as to whether the Global Compact on Refugees has achieved more equitable responsibility-sharing among States, a TWAIL perspective is indispensable as it brings the true focus of the analysis into question – that is, whether the Compact has expanded access to third country solutions. This indicator corresponds to the third key objective of the GCR, yet this article believes it is the most important as it scrutinises the contribution of the Global North to refugee responsibility-sharing in the form of resettlement and complementary pathways.[13] As these solutions directly challenge the non-entrée and externalisation practices of the Global North by bringing refugees onto their territories and demanding richer States to assist beyond mere financial donations, genuinely equitable responsibility-sharing can be achieved. However, the Compact has fundamentally failed to secure this.
Among commentators, two main criticisms have been raised against the GCR. The first is that the Compact fails to establish a binding operational mechanism which could guarantee fairer contribution from UN Member States towards the protection of refugees.[14] The voluntary basis of the Compact essentially allows the deterrence policies and practices of the Global North to remain intact which reinforces the unjust and disproportionate responsibility bearing by the Global South. The second major criticism is that the Compact does not sufficiently address the root causes of forced displacement beyond factors other than conflict, persecution, poverty, and environmental disasters.[15] In particular, the Compact fails to recognise the contribution of third States to internal conflicts, for example, in the form of Western military intervention or the waging of proxy wars as in Syria.[16] Without condemning the hegemonic ambitions of powerful States and the humanitarian consequences of their actions, the GCR leaves the imperialistic underpinnings of the international order and the refugee protection regime unchallenged. Thus, until the Compact is able to confront the privileges of the Global North and ensure that richer States will welcome more refugees onto their territories, this article must agree with Hathaway in his appraisal of the Compact as a ‘cop-out’.[17]
Before examining and elaborating upon these two criticisms, this article will first present a cursory overview of the state of forced displacement around the world, focusing in particular on the movements and trends in the few years leading up to the adoption of the New York Declaration and the Compact. Next, this article will introduce the concept of responsibility-sharing in the context of refugee protection and will distinguish between ‘sharing money’ and ‘sharing people’ in order to emphasise why the latter is crucial if the compact is to truly establish a more equitable refugee protection regime. Following this, the article will then introduce TWAIL scholarship and briefly discuss its core tenets. In doing so, it will be explained why a post-colonial perspective must be adopted in the analysis of whether the Compact has achieved its objectives in an inequitable global order. Finally, this theoretical approach will be applied to examine the two main criticisms outlined above which have been raised by notable commentators on the GCR.
In the opening words of the New York Declaration for Refugees and Migrants, the instrument noted that ‘since earliest times, humanity has been on the move ... [however] we are witnessing in today’s world an unprecedented level of human mobility’.[18] In 2016 when the Declaration was made, the number of forcibly displaced people around the world was 65.6 million.[19] Of those people, 5.5 million were from Syria as the conflict waged on to its sixth year.[20] The 2016 total was an increase from the annual figure in 2015 (65.3 million) and in 2014 (59.5 million),[21] indicating a concerning trend upwards. This projection was correct as for the first time on record, there are now over 100 million forcibly displaced people worldwide.[22] Since the New York Declaration and the Global Compact on Refugees were adopted to mitigate the impacts of the displacement crisis, these numbers raise the question of whether the instruments have been effective.
One of the core objectives of the Declaration and the Compact was to ensure more equitable and predictable responsibility-sharing among States.[23] In 2016, 84% of the world’s refugees were hosted in developing regions with the least developed countries providing asylum to 4.9 million refugees.[24] However, as of the latest figures in 2021, 83% of the world’s refugees were still being hosted in low- and middle-income countries with the least developed countries providing asylum now to 7 million refugees.[25] Additionally, when considered with the fact that five of the world’s largest refugee camps are located within the Global South, [26] these statistics represent an irrefutable state of inequitable responsibility-sharing within the international community.
The principle of responsibility-sharing can be defined as the ‘effort to achieve a more equitable distribution of responsibilities to provide refugees with protection and solutions and of associated costs and benefits’.[27] It is a core tenet of the Global Compact on Refugees as the Compact recognises that some States may be disproportionately burdened by hosting large movements of refugees and calls for more equitable sharing of this responsibility among the international community.[28] However, responsibility-sharing may entail different means. One way is through the sharing of money; this involves contributing to the protection of refugees by means of donating financial and material resources to host States.[29] Another way is through the sharing of people; this involves the physical relocation of refugees and asylum seekers through avenues of resettlement and complementary pathways for admission.[30] The GCR describes complementary pathways as to include, for example, community sponsorship programs, humanitarian visas, educational opportunities for refugees and more.[31]
Garlick notes that the latter kind of responsibility-sharing is the ‘most effective but controversial way to address disparities in refugee burdens’.[32] Among the Global North, it is also the most resisted way to contribute to more equitable responsibility-sharing. While developed States have donated significantly to the funds available to meet the material needs of refugees, they have simultaneously maintained harsh deterrence policies and externalisation practices which prevent refugees and asylum seekers from being able to stay within the territory of their countries. As such, Hathaway argues that the ‘core job’ of States outside regions of displacement should be resettlement, since the Global South already disproportionately bears the burden of hosting large movements of refugees.[33] Not only is this necessary in order to avoid protracted refugee situations, it would also achieve more meaningful equitable responsibility-sharing between the Global North and the Global South as on average, less than 1% of refugees are resettled every year.[34] Hence, this essay believes that in considering whether the Compact has achieved its aim, reference must be had to the willingness of States, especially those in the Global North to accept refugees onto their territories.
TWAIL is a body of scholarship which developed during, and in response to, the turbulent period of decolonisation in the second half of the 20th century.[35] As newly independent States became subsumed into the system of international law as it then stood, it quickly became apparent that these pre-existing structures and regimes were geared to favour the West as they had been created by Europe, for Europe.[36] Institutions such as the World Bank and the International Monetary Fund allowed previous imperial powers to maintain control over the newly established States despite them no longer being under direct colonial rule. Hence why Matua and Anghie argue that independence was ‘illusory’ as these former colonies remained ‘bonded – politically, legally, and economically – to the West’.[37]
Seeing that international law provided for the continued subjugation of the Third World to a new form a colonialism i.e., ‘neo-colonialism’, the ideological premise of TWAIL therefore, was that international law is illegitimate. Not only does it reproduce and sustain ‘the plunder and subordination of the Third World’ by the ‘First’ World – it also normalises it.[38] To this extent, TWAIL denounces international law is a ‘hegemonic tool’ as it was, and continues to be used to advance the economic, social, and political interests of the West ‘at the expense of the rest’.[39]
In order to challenge the Eurocentric disposition of international law, TWAIL intentionally privileges the perspective of the Third World and rejects the tendency for it to be overlooked in favour of more dominant Western narratives and discourses.[40] An analysis of international law from this point of view is invaluable as it disproves the notion that the Third World is underdeveloped because of its inherent inferiority to the West. Rather, it is recognised that the current inequitable global order is a consequence of the greed and exploitation of the colonial powers of the past. As these geopolitical dynamics also inform the international refugee protection regime, this article argues that a TWAIL perspective is indispensable to understanding why the responsibility for hosting and protecting refugees has been disproportionately shouldered by the Global South. Furthermore, if the aim of the Compact is to ensure more equitable responsibility-sharing, then the question of whether this objective has been achieved must be answered from the point of view of those who have been subjected to unfairness the most – the Third World.
From as early as the international refugee protection regime had been established in the 20th century, there has always been a major missing piece – an operational mechanism which could ensure that the responsibilities for protecting refugees would be shared fairly among States.[41] This has come to be known as the ‘perennial gap’ in the refugee law framework.[42] However, with the introduction of the Global Compact on Refugees, it was hoped that this gap could finally begin to be filled.[43] The affirmation of the Compact by the UN General Assembly represented a readiness to ‘operationalise the principle of burden- and responsibility-sharing, to mobilise the international community as a whole, and to galvanise action for an improved response to refugee situations.’[44] Yet despite the strong convictions that these words invoke, the Compact is undermined by the fact that it is a non-binding piece of ‘soft law’[45] – and it is on this point which many commentators have criticised as a major failing of the GCR for several reasons.
First, as the Compact relies on the voluntary will of Member States,[46] this means that equitable responsibility-sharing cannot actually be secured. More importantly, this article argues that it is ‘people sharing’ in particular which cannot be guaranteed, and which ultimately is the downfall of the Compact as it fails to challenge the deterrence policies of the Global North. The lack of binding, legal obligations and accordingly the lack of formal consequences emboldens developed States to publicly support the Compact while at the same time keep their non-entrée and externalisation practices in place. These are the exact practices which have contributed to the problem of inequitable responsibility bearing by the Global South and is what the Compact is ironically intended to remedy. Yet, the voluntary approach of the GCR essentially means that in the end, there is ‘no shift away from the status quo’.[47]
On the other hand, proponents of the GCR have argued that the non-binding character of the Compact has actually been crucial to its success in gaining overwhelming support from the UN General Assembly. It was voted in favour of adoption by 181 Member States, with only two States voting against (one of which was the United States) and three States abstaining.[48] Especially in the political climate in which the Compact was drafted and adopted, it was argued that compromise was inevitably necessary and that to have pushed for more ‘would be to risk complete failure’.[49]
This article will consider the merits of each position in the following section. With respect to the claim that the non-binding obligations of the Compact enable the Global North to maintain its deterrence policies, this article will raise for consideration the EU-Turkey Deal, Australia’s offshore processing regime, and the United Kingdom’s recent resettlement agreement with Rwanda, in order to ultimately conclude that the criticism against the GCR is well founded. With respect to the counter argument, this article will look to the text of the draft documents of the GCR in order to demonstrate that while there is value in creating an instrument that is capable of garnering widespread support from the international community, it is heavily outweighed by the fact that this support can be rendered meaningless if States are able to take advantage of the non-binding character of the Compact in order to avoid their commitments to responsibility-sharing.
A The GCR and Deterrence Policies
Within the past few decades, the Global North has persistently and staunchly maintained a regime of non-entrée and externalisation.[50] As a consequence, the Global South has had to provide the ‘global public good’ of hosting and protecting refugees on behalf of the rest of the world.[51] For example, in the midst of the Syrian refugee and humanitarian crisis, the very one which largely prompted the development of the New York Declaration and the Global Compact on Refugees, the European Union entered into a deal with Turkey whereby the latter would agree to ‘take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU’.[52] Furthermore, not only were asylum seekers prevented from being able to enter into Europe, the deal also provided for all irregular migrants crossing from Turkey into Greece to be returned to Turkey.[53]
Another example among the Global North is Australia’s offshore detention processing regime. This policy redirects asylum seekers away from Australia’s own territory and instead onto Nauru and Manus Island.[54] However, it is not only physical bodies which are being externalised, it is also Australia’s international refugee obligations that are being delegated to other developing States to discharge – obligations which Australia voluntarily undertook.[55] Finally, but definitely not exhaustively, another policy of non-entrée and externalisation within the Global North is the United Kingdom’s migration agreement with Rwanda. Echoing Australia’s offshore processing regime, this agreement provides for the United Kingdom to send asylum seekers to Rwanda where asylum claims will be processed instead. However, these asylum seekers will never be ‘eligible to return to the United Kingdom’.[56]
In all these examples, the dynamic which reoccurs is that the developed State contracts with a ‘developing’ State so that the latter may be engaged to do the ‘humanitarian heavy lifting’ for the other.[57] The developed State seeks to physically keep refugees and asylum seekers off of their own territories and to contain them within the boundaries of the Global South. This is despite the fact that all the Global North countries considered in the examples above have affirmed the Global Compact on Refugees. Yet instead of cooperating to ensure that the disproportionate bearing of responsibility by the Global South is alleviated, the Global North has brazenly defied the principles and objectives of the Compact and has instead sought to achieve the exact opposite with only their own State’s best interest in mind.
Aleinikoff explains that:
The States that now benefit from a system that essentially locks refugees into host States have recognised that they can better protect their own interests by doubling down on deterrence measures than by joining a plan for responsible distribution of the world’s displaced.[58]
In the context of the examples considered above, this analysis would also include locking refugees into other States in order to avoid being the host State. However, these States have already joined a plan for responsible distribution – the problem is that that plan is non-binding and lacks an operational mechanism that is capable of ensuring fairer contribution to refugee protection from all UN Member States. Ultimately, as the Global Compact on Refugees fails to establish legal obligations, developed States remain entitled to uphold their deterrence policies and to contravene the principles of the Compact without any fear of retribution.
These policies not only have the effect of keeping refugees within the Global South, they also enable the refugees who do reach the Global North to be returned to the Global South. As it is mostly low- and middle-income countries which must continuously expend their resources on hosting and protecting refugees,[59] these countries are impeded in their strives towards their own development. All the while, the Global North remains at liberty to pursue national refugee policies which only have their own State’s best material interests in mind. These unequal circumstances perpetuate the divide between the Global North and the Global South and reinforces the wealth, privilege, and dominance of Western and developed States. This dominance is a legacy of the colonial encounter and may also be recognised in the superior bargaining power of the Global North which enabled richer States to secure such advantageous refugee arrangements with other poorer countries in the first place.
Having considered how the GCR interacts with the non-entrée and externalisation practices of developed countries (or its lack thereof), it must be concluded that the only way to directly challenge these failures and address the shirking of responsibility by the Global North, is to establish a binding operational mechanism that would legally require developed States to increase their intake of refugees through resettlement and complementary pathways. By demanding that the Global North share in the responsibility of hosting refugees within their own territories, the GCR would finally be able to achieve a more meaningful and equitable result, and thus challenge the imperialistic underpinnings of the international community.
B The GCR and the Politics of Drafting
An alternative interpretation of the non-binding character of the Compact is that it was actually a strength of the instrument, not a fatal flaw. Triggs and Wall are proponents of this view as they argue that there were several benefits obtained in deciding to leave the GCR within the domain of ‘soft law’. First, the non-binding structure of the Compact allows for greater flexibility which enables the GCR to be adapted a range of different circumstances as they arise.[60] This point is particularly important as refugee situations and needs constantly evolve. Secondly, the aspirational rather than mandatory quality of the Compact is more inducive of inviting States to commit to change.[61] Finally, Triggs and Wall argue that it is easier to secure agreement from States when they are not being asked to sign up to binding legal obligations.[62]
However, while all these advantages may be appreciated, the non-binding nature of the GCR ultimately reflects a lack of willingness from States to commit to concrete responsibilities. For example, in the first draft of the Compact, it was proposed that the success of the Compact would be determined by the progress made in ‘an improved system of burden- and responsibility-sharing, measured in terms of the distribution and contributions among States...through the hosting of refugees, making financial contributions, and providing solutions’. [63] However, by the third draft, this article was removed, and the four key objectives of the Comprehensive Refugee Response Framework were borrowed and replicated in the GCR.[64] This lack of commitment to equitable responsibility-sharing present at the conception of the Compact has followed through to the end and resulted in the unwillingness of the Global North to dismantle their non-entrée and externalisation regimes. Therefore, this article must conclude that whatever benefit was gained from the non-binding character of the Compact, it has heavily been outweighed by its disadvantages. It is the lack of a binding operational mechanism which has prevented the GCR from achieving the goal of more equitable and predictable responsibility-sharing.
The international refugee protection regime was not established with equal contribution from all States. It was a product of Europe which came to be inherited by the rest of the world as colonies overthrew imperial rule, gained independence, and joined the international community as sovereign States in their own right.[65] However, a consequence of this development is that as the refugee law framework was created for Europe, forced displacement and refugee crises within the Global South are essentially rendered ‘invisible’ in this system which was not created with the interests of the Third World in mind.[66] It is not until these humanitarian crises end up reaching the shores of the Global North and disrupting the comfort of developed States that the international community is inspired to convene in order to address these pressing issues.
The New York Declaration and the Global Compact on Refugees were developed in response to the European migration crisis,[67] yet the conflict in Syria and the surrounding region from which those refugees were displaced had been going on for many years prior. It was just that up until then, refugees and asylum seekers had remained within neighbouring Mediterranean countries.[68] As Woldermariam, Maguire and von Meding describe it, the international refugee protection regime ‘has morphed to strictly regulate forced displacement as it interacted with Europe from the outside’.[69] Furthermore, even when the Global North did have the opportunity to proactively address the refugee crisis in the course of developing the Compact, there was instead a distinct lack of commitment to allow those who had reached Europe and the Global North to apply for asylum there.[70] This is especially shameful when it is recognised that many powerful States in the Global North had contributed to these refugee-producing conflicts, whether directly by military intervention or indirectly by the waging of proxy wars.[71] However, the Global Compact on Refugees does not recognise this factor as a root cause of forced displacement – and this is precisely why commentators have identified it as another major failing of the GCR.
In the following sections, this article will elaborate upon the role of external forces in producing internal conflicts and consider Coen’s suggestion that States’ culpability in producing forced displacement events should form part of the criteria in allocating responsibility for protecting and hosting refugees.[72] This article will conclude that although this model has significant normative value in holding States accountable to the humanitarian atrocities which their acts of military interventions create, in the current political climate of the world it seems unlikely that such a framework would succeed. Especially under a Compact which does not even recognise third State intervention as a root cause of displacement, let alone a binding operational mechanism to enforce it.
A External Intervention as a Root Cause of Forced Displacement
In the resolution affirming the Global Compact on Refugees, the UN General Assembly recognised ‘the importance of achieving durable solutions to refugee situations and, in particular, the need to address in this process the root causes of refugee movements.’[73] These causes were identified as including armed conflict, human rights abuses, poverty, and environmental disasters.[74] However, notably absent from this list is the contribution of third States to local conflicts via acts of military intervention or otherwise such as through the waging of proxy wars. This approach accords with what Chimni calls an ‘internalist’ explanation of forced displacement as the GCR focuses predominantly on the issues within the refugee-producing country,[75] rather than seeking to identify external forces which may have contributed to the refugee flow (with the exception of environmental factors). The consequence of such a view is that it conceals the neo-imperialistic ambitions of powerful States in their decisions to intervene and absolves them of the humanitarian consequences of their actions.
A most compelling example of this is the involvement of the US and other State and non-State actors in the Syrian refugee crisis. Woldermariam, Maguire and von Meding note that one of the ‘striking features’ of the conflict is that since hostilities began in 2011, multiple foreign powers have been involved in supporting and arming different sides.[76] For this reason the authors conclude that ‘to characterise the Syrian displacement crisis as wholly resulting from the actions of internal actors and disregard the actions of foreign actors would be to mischaracterise it’.[77] Yet the Global Compact on Refugees has essentially done just that as it has failed to recognise external intervention as a root cause of forced displacement.
Furthermore, instead of seeking to hold third States accountable, the Compact is mistakenly preoccupied with the objective of easing pressure off host countries. While this aim is by no means insignificant (especially where it involves resettlement), Chimni warns that it is a ‘misplaced priority’ and a ‘red herring’ as it diverts attention away from scrutinising the true causes of forced displacement.[78] In other words, the GCR only seeks to treat the symptoms of large refugee movements and not the cause of it. Consequently, this allows powerful States, particularly Western States, to feel emboldened in their pursuit of hegemonic ends without any regard for the humanitarian fallout of their actions – actions which will disproportionately be borne by the Global South. Therefore, in as far as the Global Compact on Refugees fails to identify and condemn the external intervention of third States in local conflicts, the imperialistic underpinnings of the international refugee protection regime will remain unshaken. In such an inequitable global order, it is only inevitable that the GCR will fail to bring about more just and predictable responsibility-sharing among the Global North and the Global South.
B Culpability and Responsibility-Sharing
One possible way to address this major failing of the GCR could be to integrate the concept of ‘culpability’ into the formula for refugee responsibility-sharing. Coen argues that where external States have contributed to internal conflicts and forced displacement, these States should be required to undertake ‘special duties’ and obligations, such as providing asylum to refugees, since they were causally involved in producing them.[79] For example, in the past the US had taken on a leadership role in initiating responsibility-sharing arrangements for refugees of the Vietnam War as the US had directly been involved in the escalation of the conflict.[80] Coen reasons that these same duties should now be applied towards Iraqi and Syrian refugees as the US’ military intervention and occupation of these countries had significantly contributed to the forcible displacement of their citizens.[81] Such a formulation of responsibility-sharing would provide predictability, address the root causes of forced displacement, and favour resettlement and complementary pathways as solutions for refugees. Furthermore, it would also go towards ensuring more equitable contributions from the Global North and the Global South as often it is the developed ‘major powers that have externally intervened’ in local conflicts, as opposed to developing countries.[82]
Yet, despite the convincing advantages of a culpability-based model of responsibility-sharing, this article ultimately believes that it would not be attainable in the current political climate. Coen suggests that the model can be made viable by framing the acceptance of fault and preparedness to make reparations as to bolstering a State’s legitimacy, and thus, overall national interest.[83] However, this article has already examined above how States’ national interests, especially of those in the Global North, have largely aligned with non-entrée and externalisation practices and the softest articulation of ‘commitments’ in the Compact as possible. Therefore, in light of all these circumstances, the only conclusion open for this article to draw is that the GCR has fundamentally failed in its aim to secure more equitable and predictable responsibility-sharing for the protection of refugees among the Global North and Global South.
The GCR has sought to provide a basis for more equitable and predictable responsibility-sharing in a world experiencing unprecedented levels of forced displacement. However, it has been raised by notable commentators that the GCR was significantly flawed in two respects. First, the Compact lacked a binding operational mechanism which could guarantee fairer distribution of responsibilities among UN Member States – in particular, the responsibility of ‘sharing people’. This article has examined how the non-binding effect of the Compact has essentially allowed the Global North to uphold their deterrence and externalisation practices in direct opposition to the objectives of the Compact. Non-entrée regimes, such as those implemented in the EU, Australia, and the UK, reinforce the disproportionate bearing of responsibility by the Global South as they provide for countries such as Turkey, Papua New Guinea, Nauru, and Rwanda to take on the onus of hosting refugees and asylum seekers.
The second failure of the Compact was that it did not identify external intervention as a root cause of forced displacement. This wilful blindness was detrimental as acts of (military) intervention by third States may be underpinned by hegemonic ambitions. The failure of the Compact to recognise and condemn this has consequently allowed for powerful States, particularly Western States, to perpetuate without fear of repercussions, the inequitable global order first laid down in the colonial encounter through means of violence and exploitation. As this same global order informs the dynamics of the international refugee protection regime, it was only inevitable that the GCR would fail to secure more equitable responsibility-sharing among the Global North and the Global South. For these reasons and for the empirical evidence which has demonstrated that the state of the international refugee protection regime has remained essentially the same, if not worse, this essay must conclude that the GCR was indeed a ‘cop-out’.
[1] Resolution adopted by the General Assembly on 17 December 2018, GA Res 73/151, UN Doc A/RES/73/151 (10 January 2019).
[2] United Nations, Global Compact on Refugees (2018) 2.
[3] See generally United Nations High Commissioner for Refugees, Global Trends Forced Displacement in 2015 (Annual Report, 20 June 2016); United Nations High Commissioner for Refugees, Global Trends Forced Displacement in 2016 (Annual Report, 19 June 2017).
[4] United Nations, ‘New York Declaration for Refugees and Migrants adopted by all Member States at historic UN Summit’ (Press Release, 19 September 2016).
[5] United Nations High Commissioner for Refugees, ‘UNHCR Welcomes ‘Unprecedented Force and Resonance’ of New York Declaration’ (Press Release, 19 September 2016).
[6] United Nations High Commissioner for Refugees, 2021 Global Compact on Refugees Indicator Report (2021).
[7] United Nations High Commissioner for Refugees, ‘UNHCR: Ukraine, Other Conflicts Push Forcibly Displaced Total Over 100 million for First Time’ (Press Release, 23 May 2022).
[8] United Nations High Commissioner for Refugees, Global Compact on Refugees: Indicator Framework (2019) 5.
[9] Samuel Berhanu Woldemariam, Amy Maguire and Jason von Meding, ‘Forced Human Displacement, the Third World and International Law: A TWAIL Perspective’ [2019] MelbJlIntLaw 10; (2019) 20(1) Melbourne Journal of International Law 248.
[10] United Nations High Commissioner for Refugees, ‘Key Indicators’, Refugee Data Finder (Web Page, 16 June 2022) <https://www.unhcr.org/refugee-statistics/>.
[11] Thomas Gammeltoft-Hansen, ‘International Refugee Law and Refugee Policy: The Case of Deterrence Policies’ (2014) 27(4) Journal of Refugee Studies 574; Penelope Mathew, ‘Killing Asylum Softly or Leaving No One Behind? The New York Declaration and Global Compacts in a Divided World’ (2021) Globalizations (forthcoming).
[12] See, eg, Woldemariam, Maguire and von Meding (n 9); Luis Eslava and Sundhya Pahuja, ‘Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law’ (2012) 45(2) Law and Politics in Africa, Asia and Latin America 195.
[13] Global Compact on Refugees: Indicator Framework (n 8) 10.
[14] James C Hathaway, ‘The Global Cop-Out on Refugees’ (2018) 30(4) International Journal of Refugee Law 591.
[15] BS Chimni, ‘Global Compact on Refugees: One Step Forward, Two Steps Back’ (2018) 30(4) International Journal of Refugee Law 630 (‘Global Compact on Refugees’); Global Compact on Refugees (n 2) 4–5.
[16] Chimni, ‘Global Compact on Refugees’ (n 15) 630; Woldemariam, Maguire and von Meding (n 9) 273.
[17] Hathaway (n 14).
[18] New York Declaration for Refugees and Migrants, General Assembly Res 71/1, UN Doc A/RES/71/1 (3 October 2016, adopted 19 September 2016) paras 1, 3.
[19] Global Trends Forced Displacement in 2016 (n 3) 2.
[20] Ibid 3.
[21] Global Trends Forced Displacement in 2015 (n 3) 2; United Nations High Commissioner for Refugees, Global Trends Forced Displacement in 2014 (Annual Report, 18 Jun 2015) 2.
[22] ‘UNHCR: Ukraine, Other Conflicts Push Forcibly Displaced Total Over 100 Million for First Time’ (n 7).
[23] Global Compact on Refugees (n 2) 2.
[24] Global Trends Forced Displacement in 2016 (n 3).
[25] United Nations High Commissioner for Refugees, Global Trends Forced Displacement in 2021 (Annual Report, 15 June 2022) 2, 19.
[26] ‘Inside the World's Five Largest Refugee Camps’, USA for UNHCR (Web Page, 1 April 2021) <https://www.unrefugees.org/news/inside-the-world-s-five-largest-refugee-camps/>.
[27] Madeline Garlick, ‘The Sharing of Responsibilities for the International Protection of Refugees’ in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (Oxford University Press, 2021) 463, 464.
[28] Resolution adopted by the General Assembly on 17 December 2018 (n 1) para 17.
[29] Garlick (n 27) 468.
[30] Ibid 469.
[31] Global Compact on Refugees (n 2) 37.
[32] Garlick (n 27) 469.
[33] Hathaway (n 14) 599.
[34] See ibid; ‘Resettlement’, UNHCR (Web Page) <https://www.unhcr.org/en-au/resettlement.html#:~:text=There%20were%2020.7%20million%20refugees,refugee%20and%20the%20receiving%20country.>.
[35] Makau Matua and Antony Anghie, ‘What is TWAIL?’ (2000) 94 (April) Proceedings of the Annual Meeting (American Society of International Law) 31, 31.
[36] Woldermariam, Maguire and von Meding (n 9) 263.
[37] Matua and Anghie (n 35) 34.
[38] Ibid 31.
[39] Woldermariam, Maguire and von Meding (n 9) 271.
[40] Ibid 251.
[41] Hathaway (n 14) 591.
[42] Volker Turk, ‘The Promise and Potential of the Global Compact on Refugees’ (2018) 30(4) International Journal of Refugee Law 575, 581.
[43] Hathaway (n 14) 592.
[44] Global Compact on Refugees (n 2) iii.
[45] Woldermariam, Maguire and von Meding (n 9) 250.
[46] Global Compact on Refugees (n 2) 2.
[47] Hathaway (n 14) 596.
[48] UNHCR, ‘UN affirms ‘historic’ global compact to support world’s refugees’, UN News (online, 17 December 2018) <https://news.un.org/en/story/2018/12/1028791>.
[49] Hathaway (n 14) 594.
[50] Mathew (n 11) 3.
[51] Turk (n 42) 577.
[52] European Council, ‘EU-Turkey Statement, 18 March 2016’ (Press Release, 18 March 2016).
[53] See ibid.
[54] ‘Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: A Quick Guide to Statistics and Resources’, Parliament of Australia (Web Page, 19 December 2016) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/Offshore>.
[55] Jane McAdam and Fiona Chong, Refugee Rights and Policy Wrongs (UNSW Press, 2019) 9.
[56] United Kingdom Parliament, ‘UK-Rwanda Migration and Economic Development Partnership’, House of Commons Library (Web Page, 28 June 2022) <https://commonslibrary.parliament.uk/research-briefings/cbp-9568/>.
[57] Mathew (n 11) 2.
[58] TA Aleinikoff, ‘The Unfinished Work of the Global Compact on Refugees’ (2018) 30(4) International Journal of Refugee Law 611, 613.
[59] ‘Key Indicators’ (n 10).
[60] Gillian D Triggs and Patrick CJ Wall, ‘‘The Makings of a Success’: The Global Compact on Refugees and the Inaugural Global Refugee Forum’ (2020) 32(2) International Journal of Refugee Law 283, 304.
[61] Ibid 305.
[62] Triggs and Wall (n 60) 305.
[63] Ibid 295 (emphasis added).
[64] Ibid 296.
[65] Woldermarim, Maguire and von Meding (n 9).
[66] Ibid 263.
[67] Aleinikoff (n 58) 611; Triggs and Wall (n 60) 284.
[68] Triggs and Wall (n 60) 284.
[69] Woldermarim, Maguire and von Meding (n 9) 250.
[70] Aleinikoff (n 58) 611.
[71] Chimni, ‘Global Compact on Refugees’ (n 15).
[72] Alise Coen, ‘Capable and Culpable? The United States, RtoP, and Refugee Responsibility-Sharing’ (2017) 31(1) Ethics & International Affairs 71.
[73] Resolution adopted by the General Assembly on 17 December 2018 (n 1) para 47.
[74] Global Compact on Refugees (n 2) 4–5.
[75] BS Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11(4) Journal of Refugee Studies 350, 351 (‘The Geopolitics of Refugee Studies’).
[76] Woldermariam, Maguire and von Meding (n 9) 273.
[77] See ibid.
[78] Chimni, ‘Global Compact on Refugees’ (n 15) 631, 633.
[79] Coen (n 72) 75.
[80] Ibid.
[81] Ibid 79–83.
[82] Ibid 75.
[83] Ibid 86.
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