The refugee problem - time for a “new order”

The notion of responsibility to protect is thus essentially “needs driven”. Applied to the forced migration context, it would see no necessity to distinguish between different types of refugees.

What it doesn’t do in its present state of evolution is provide answers to the institutional questions. Moreover, its internal logic suggests humanitarian relief operations could take the place of refugee protection, with the present rights-based approach being substituted by something else that is more discretionary or “political”. Experience tells us this approach can’t be trusted.

Humanitarian need is not the only characteristic of the refugee who is - in a very direct sense - serarching for his or her rights to be protected against violations, or simply to be recognised. For these and other reasons, the necessity for an international refugee protection system will continue.

If the institutional means are also to continue, they will need to draw on some of the qualities identified in the UNHCR’s current Statute, and on others inferred from eight decades of practice - independence, authority, impartiality, humanitarianism and accountability.

So long as borders remain and states are seen as sovereign, the international dimension will be relevant even in small things. And because serious interests of the state receiving refugees will be involved, the individual will continue to require protection.

That protection, in turn, must be provided not only by national institutions, but also by an agency with the authority, standing and competence to insist on the fulfilment of international obligations.

A “law-based” approach to international protection already exists, beginning with the 1951 Convention and other relevant treaties. And while protection is often wider than rights, it still begins with rights which ought to permeate the whole.

It is here, on the solid foundation of rights, that a truly protecting agency must make its stand and prove its worth.

The responsibility-to-protect approach should surely galvanise the international community to recognise the gaps in the UN’s humanitarian response system, but it cannot substitute for the rights-base of the present international protection regime.

Still, as former UN Secretary-General Boutros Boutros-Ghali presciently observed, an evolving UN system will require greater transparency and accountability, and more democracy.

This also applies to a future refugee protection agency, whether in deciding individual claims, administering refugee settlements, or planning grand solutions such as repatriation or resettlement.

Too often today and in the recent past such matters have been kept behind closed doors and guarded against effective review. Too often the voice of the refugee has not been sought out, and if raised, has not been heard.