As demonstrated by the recent crisis in Syria, the international community is failing to respond effectively to refugee crises around the world. With the civil war in Syria and the massive influx of Syrian refugees into neighboring countries such as Lebanon, Jordan, Iraq, and Turkey, as well as many countries in Europe, the efficacy of the international human rights regime in responding to complex humanitarian emergencies has once again come under question. In January 2015, the Office of the United Nations High Commissioner for Refugees (UNHCR) declared that Syrians overtook Afghans as the largest refugee population aside from Palestinians. (1) UNHCR estimates that more than 12 million Syrians have been internally displaced and close to 4 million Syrians were forced to leave their country since the outbreak of the civil war, fleeing mostly to Syria's immediate neighbors. (2)
In most of Syria's neighboring countries, Syrian refugees are living in harsh conditions--in overcrowded camps, with little or no income and poor access to services. According to the UNHCR, "Half of all Syrian refugees in Lebanon live in insecure dwellings [and] a survey of 40,000 Syrian families in Jordan's urban areas found that two-thirds were living below the absolute poverty line." (3) Turkey, now the world's biggest refugee-hosting country, has managed to offer better conditions to the more than 2 million refugees it currently hosts but at huge political and financial costs. (4) So far, Ankara has spent more than $6 billion in direct assistance on refugees. (5)
The influx of Syrian refugees has also placed strains on local economies and the provision of public services in communities with large refugee populations. A January 2015 study by the Turkish think tank, the Center for Middle Eastern Strategic Studies (ORSAM), reported a steady decline in the quality of education and healthcare. (6) Housing rents were found to have risen over 50 percent in refugee-hosting large cities like Gaziantep, Kilis, Hatay, and Urfa. (7) The influx of Syrian refugees is estimated to have resulted in an additional 1.5-2.0 point increase in price inflation and around 15 percent decline in wages. (8) These circumstances have also exacerbated tensions between the locals and the refugee populations, even escalating to mob violence and targeted attacks against refugee-owned businesses. (9) Not surprisingly, Turkey has emerged as one of the most vocal critics of the Syrian regime, and considering the turbulent history of Syrian-Turkish relations, it is not difficult to imagine how the Syrian Civil War is going to cast a long shadow on bilateral relations for decades to come. (10)
Although it stands out due to its scale and magnitude, Syria is only one among many regions currently facing humanitarian disasters. In addition to Syria, the UN is conducting emergency operations in sixteen other countries including Iraq, the Central African Republic, and South Sudan, where UNHCR is providing emergency relief to over 5 million internally displaced persons (IDPs) and refugees. (11) Despite their many humanitarian responsibilities, however, agencies such as the UNHCR are "chronically underfunded and understaffed" and are struggling to effectively fulfill their missions with their very limited resources. (12) The dearth of resources is an even more pronounced problem for protracted refugee situations, which even senior UNHCR officials bemoan "are not the high-profile operations preferred by donors, and hence are almost invariably neglected and underfunded." (13) Senior UN leaders have acknowledged these shortcomings. For example, in early 2014, the UnderSecretary-General for Humanitarian Affairs and Emergency Relief Coordinator Valerie Amos stated, "The world's collective response capacity and resources are being stretched to the limit." (14) Jim Y. Kim, president of the World Bank Group, additionally called the international response to Syrian refugees a "failed" enterprise and described the situation as a "humanitarian crisis of enormous proportions, and right now we are not responding effectively ... [because] there are many political difficulties in deciding [who is] going to step up, [who is] going to provide the funds." (15)
This article argues that the international human rights regime has been intentionally designed to remain ineffectual and reliant on political leadership in order to allow for as large a space as possible for political discretion in managing refugee situations and, as such, its shortcomings can only be addressed by political initiative. The political initiative proposed in this article is the exercise of a right to remedial compensation against refugee-generating states through the United Nations Security Council (UNSC) to assist UN agencies in funding and coordinating humanitarian relief efforts. In other words, international agencies would be granted limited access to a state's assets abroad or--in more divisive cases like Syria--a state's assets that have been frozen through unilateral action by member states would be made available to UN agencies providing humanitarian relief. Theoretically, this argument could also be applied to recipient countries that incurred an undue financial burden. This article, while acknowledging the latter possibility, recognizes its politically contentious nature and, therefore, will refrain from discussing it extensively. It will argue, however, that such a practice, through the UNSC and solely for the benefit of UN agencies coordinating humanitarian relief efforts, aimed at the refugee-generating country's citizens is permissible from moral, legal, and political perspectives, and that there exists within the Charter of the United Nations, a legal and doctrinal basis for such a practice to be adopted under the auspices of the UNSC.
PURPOSEFULLY AMBIGUOUS: DEFINING REFUGEES AND THE RIGHT TO SAFE HAVEN
A key question in the international refugee regime is the nature of the category to which the title refers: Who is a refugee? In the 1951 United Nations Convention relating to the Status of Refugees (the "Geneva Convention"), a refugee is defined as someone who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." (16) Moreover, this is applied only to persons who became refugees due to events occurring in Europe before 1 January 1951. Under this formula, the criterion determining refugee status is persecution, which indicates a deliberate act of the government against individuals and therefore excludes victims of general insecurity, exposure to violence, denial of human rights, or systematic mistreatment, and people who have not crossed national frontiers to seek refuge (i.e., IDPs).
In the decades since, there have been efforts to expand the scope of the Geneva Convention. With the 1967 Protocol, the geographical and time limits were removed. (17) Regional instruments such as the 1969 Organization of African Unity Convention later expanded the category beyond the criterion of persecution. (18) In addition to these attempts, there have been efforts to argue that the Geneva Convention provides for protection beyond the narrowly defined category in Article 1. Andrew Shacknove, a former UNHCR lawyer and current University of Oxford professor, argued that the bond between the citizen and her state can be damaged in ways other than persecution and that a proper definition of a refugee must account for the broader ways in which this bond can be cut off. (19) Legal
experts Atle Grahl-Madsen, and Edoardo Arboleda and Ian Hoy similarly argue that the loss of the bond between the citizen and her state warrants protection under the Geneva Convention. (20)
The political nature of this ambiguity is revealed by how the international attitude toward refugees has changed over time. From the end of World War I to the conclusion of the Cold War, there was an "interest-convergence between refugees and developed countries" because
... refugees seeking protection ... were of European stock, their cultural assimilation was perceived as relatively straightforward ... [and] helped meet postwar labor shortages. The reception of refugees opposed to communist regimes moreover reinforced the ideological and strategic objectives of the capitalist world. (21) Since the end of the Cold War, however, these political, economic, and cultural incentives for reception have disappeared, and advanced industrialized nations have become increasingly protective against refugees and asylum-seekers. (22) While some scholars have raised strong arguments for a renegotiation of the refugee legal regime on the grounds that it is under-inclusive, others, such as Joan Fitzpatrick and Michael Dummett, counter that abandoning the current convention to negotiate for better terms could result in the loss of even existing rights. (23)
In essence, there is a single privilege afforded to a qualified...