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Refugee solutions, or solutions to refugeehood?

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Writing in the International Journal of Law and Psychiatry, Fleur Johns recently indicted international refugee law--the ostensible source of refugee rights and solutions--as being instead "a producer of ... pathology." She writes:



The Refugee Convention classifies refugees as "problem[s]" and "cause [s] of tension" and works towards resolving these "problem[s]" and "tension[s].".. Yet where ... lies the "problem" to be cured by recourse to international refugee law and lawyers? Does it reside in the wars, famines and political conflicts that ... drive people from their countries of nationality? Does it reside in the trauma of border-transgressions to which refugees are subject ... ? Does it reside in the callousness of governments and judges, or the xenophobia of the constituencies that support them? [Or] [d]oes it rest as much... with international refugee law's tendency to insist upon the normality of stable and enduring national attachments; [and] its innate preference for limited, fear-laden divergences therefrom? (1)

There is an urgent need, Dr. Johns contends, for " ... international refugee lawyers ... [to] take a moment to question the pre-eminence of the therapeutic mode in their professional work and its role in sustaining a prescriptive normality that tends to diagnose the refugee as flawed and requiring correction ... " (2) She concludes,

Might our instruments and strategies of cure be tainted by the very drives against which we supposedly labor in the international refugee law field? Might insistence that international refugee law has or should have therapeutic, corrective effects comprise part of the problem towards which it ostensibly directs those curative efforts? (3)

My first instinct was to contest Dr. Johns's charge. As part of international law, created and managed by states, the refugee law regime of necessity achieves humanitarian good in the margins of a more fundamental commitment to

preserve state interests. This is not only a description of the ground reality, but may in fact be a source of strength: refugee law persists in large measure because governments have a self-interest in its retention. And more specifically, is it really such a bad thing, in a world in which sovereign power still matters, to commit ourselves to enabling refugees--that is, persons disfranchised from their own state--somehow to secure either a new national attachment, or be restored to that with their country of origin? In practical terms, is that not a critical means of restoring dignity and self-determination?

Yet as I reflected more on Dr. Johns's argument, I recognized that much of her charge is sound if directed not at international refugee law as authentically conceived, but rather at the distortion of refugee law that has emerged from recent interstate and, in particular, agency reinterpretations of refugee law.

The argument I wish to make is that a legal regime which is in truth fundamentally oriented to the promotion of autonomy of refugees has been "pathologized" to focus instead on finding cures to refugeehood. A regime which was actually established to guarantee refugees lives in dignity until and unless either the cause of their flight is firmly eradicated or the refugee himself or herself chooses to pursue some alternative solution to their disfranchisement has now become a regime which labours nearly single-mindedly to design and implement top-down solutions which "fix the refugee problem."

In short, we increasingly see a regime oriented not to the facilitation of "refugee solutions," but instead to the implementation of "solutions to refugeehood."

The Fallacy of "Solutions"

To begin, I wish to be clear that I am not opposed to the notion of "solutions" as such. Solutions, at least for those who want them, are of course good things. But refugee protection, despite much rhetoric from the United Nations High Commissioner for Refugees (UNHCR) since the mid1990s to the contrary, (4) is not primarily about looking for solutions. Refugee protection is instead fundamentally oriented to creating conditions of independence and dignity which enable refugees themselves to decide how they wish to cope with their predicaments. It is about ensuring autonomy, not about the pursuit of externally conceived "fixes."

Increasingly, though, there is impatience with the duty simply to honour the rights of persons who are Convention refugees. The focus of much contemporary discourse is instead on the importance of defining and pursuing so-called "durable solutions" to refugee flight. (5) The main goal of a refugee protection regime oriented towards "durable solutions" is effectively to find a way to bring refugee status to an end--whether by means of return to the country of origin, resettlement elsewhere, or naturalization in the host country.

Indeed, those who focus on achieving durable solutions increasingly regard respect for refugee rights as little more than a "second best" option, to be pursued only until a durable solution can be implemented. UNHCR's Executive Committee, for example, has endorsed a conclusion "[ r]ecognizing the need for Governments, UNHCR and the international community to continue to respond to the asylum and assistance needs of refugees until durable solutions are found [emphasis added]." (6) This position is in line with the view once expressed by a senior official of the UNHCR that

protection should be seen as a temporary holding arrangement between the departure and return to the original community, or as a bridge between one community and another. Legal protection is the formal structure of that temporary holding arrangement or bridge. (7)

Despite the technical accuracy of the view that protection is a duty which inheres only for the duration of risk, that duty may be inadvertently degraded by referring to it as simply an "arrangement or bridge" rather than as a legitimate alternative to the pursuit of a "durable solution" to refugee status. This very simple notion--that the recognition and honouring of refugee rights is itself a fully respectable, indeed often quite a desirable response to involuntary migration--can too easily be eclipsed by the rush to locate and implement so-called "durable solutions." (8)

In contrast to this emphasis on the pursuit of durable solutions, the Refugee Convention gives priority to allowing refugees...

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