August 30, 2018 ILN

Integrating Rule of Law: New Solutions to the Global Displacement Crisis

By Paula Rudnicka

The global migration and displacement crisis demands our utmost attention and new, humane solutions. Now. With a record 65 million people currently displaced within and across national borders, and displacement becoming increasingly prolonged, forced migration cannot be addressed solely as a short-term humanitarian problem. Nor, in our interconnected world, can any country pretend to solve the problem by merely tightening its borders. Because large movements of refugees and internally displaced persons (IDPs) have significant human rights and development ramifications, humanitarian interventions must be integrated with initiatives promoting sustainable development in countries of origin, transit, and destination.

A new approach to displacement must tackle its root causes, ensure the safety and human dignity of those forced to flee, and provide comprehensive solutions for displaced persons, migrants in vulnerable situations, and their host communities. Rule of law development is central to these efforts because very often, forced migration is driven by rule of law problems in countries of origin, such as ineffective laws, poor governance, and weak accountability mechanisms. Weaknesses in the rule of law are also impediments to the realization of the rights of people who flee. In transit and destination countries, displaced people face rule of law challenges in the form of criminal exploitation by smugglers and traffickers; prolonged detention in substandard conditions; immigration and refugee status determination procedures that fall short of international standards; hurdles to obtaining legal identity documents, work authorization, and access to basic services; and growing tides of xenophobia and discrimination. Women and children, particularly those unaccompanied, as well as lesbian, gay, bisexual, transgender, and intersex (LGBTI) people are among the most vulnerable and require special attention. Undoubtedly, the path forward requires a proactive action to implement people-centered and gender-sensitive rule of law responses to forced migration.

New Global Compacts on Migration and Refugees

To meet the modern challenges of migration and displacement, the United Nations (UN) is poised to negotiate and adopt two new global agreements: one on migration and one on refugees. The Global Compact for Safe, Orderly and Regular Migration, whose text was approved in July 2018, covers international migration in a holistic manner, with a particular emphasis on human rights protections for migrants. The UN General Assembly will convene an intergovernmental conference in December in Morocco to formally adopt it. The Global Compact on Refugees will provide a Comprehensive Refugee Response Framework that acknowledges a shared international responsibility and a plan of action for states and other stakeholders to implement the framework. The UN High Commissioner for Refugees (UNHCR) is set to propose the compact in his annual report to the UN General Assembly at the end of 2018.

The creation of these new international instruments, albeit nonbinding, was driven by a commitment of the international community expressed in the New York Declaration for Refugees and Migrants, adopted by the UN General Assembly on September 19, 2016. See G.A. Res. 71/1 (Sept. 19, 2016). The Declaration calls on UN Member States to promote and ensure respect for the rule of law as the means to address the root causes of large movements of refugees and migrants. It also makes several references to concepts intrinsically associated with the rule of law, such as equality, good governance, and human rights. As such, the Declaration aligns with Sustainable Development Goal 16, which was established by the UN in 2015 to promote peaceful and inclusive societies for sustainable development, provide access to justice for all, and build effective, accountable, and inclusive institutions at all levels. While the New York Declaration rightfully elevates the rule of law discourse in the context of forced migration, it neither defines it nor offers concrete strategies for its implementation.

How ABA ROLI Is Contributing to Global Action

To capitalize on these historic events, the American Bar Association Rule of Law Initiative (ABA ROLI) devoted its 2018 Issue Paper and Conference on Contemporary Rule of Law Issues to forced migration. The issue paper, When People Flee: Rule of Law and Forced Migration, reviews the relevant legal frameworks, highlights rule of law gaps that exacerbate the global displacement crisis, and identifies concrete rule of law strategies that stakeholders can undertake to strengthen—and potentially transform—the response to the crisis. The paper concludes that the rule of law is indispensable both to the prevention and resolution of forced migration and to the protection of people who flee. It argues that integrating rule of law solutions into the new approach to forced migration will require breaking down silos and ensuring a close collaboration between humanitarian and development actors, national and local authorities, international and civil society organizations, bar associations, justice system actors, and the affected populations. There is also a dire need for stronger and more just normative standards, better implementation of existing laws and treaties, and deeper commitment to research, analysis, and reflection. The latter is necessary to prioritize investments and design evidence-based interventions that are tailored to the needs of a particular country or population.

The issue paper served as a backdrop to ABA ROLI’s annual conference, organized in April in collaboration with the George Washington University’s Elliott School of International Affairs and several ABA entities, including the ABA Commission on Immigration, the ABA Center for Human Rights, the ABA Section of Litigation, and the ABA Section of Civil Rights and Social Justice. More than 200 government and international officials, nongovernmental implementers, academic scholars, experts, and activists met to explore the critical issues around the rule of law and forced migration and to share ideas for addressing the most pressing problems. Following the route of displaced people originating in sub-Saharan Africa, Syria, and Central America, conference participants discussed the major drivers, risks, and challenges of forced migration occurring in countries of origin, transit, and destination, and explored legal responses that would mitigate some of these problems. Louise Arbour, UN Special Representative for International Migration, and Anne C. Richard, former Assistant Secretary of State for Population, Refugees, and Migration, now at Georgetown University Institute for International Migration, delivered keynote speeches. A recurring concern expressed in the issue paper and during the conference was that the creation of two global compacts reinforces the binary division between refugees and migrants, which could pose challenges to the effective implementation of the compacts.

Following the conference, ABA ROLI’s expert working group identified policy recommendations to shape a rule of law approach to the forced migration crisis. The recommendations were addressed to the drafters of the global compacts, the U.S. government, and rule of law implementers. Since then, ABA ROLI has worked with its partners to further refine and prioritize these recommendations, urging states and entities working to implement the historic global compacts to:

  • Address the root causes of internal displacement and forced migration, including by providing support to transitional justice mechanisms and justice institutions that address widespread repression, persecution and violence in fragile communities;
  • Develop policies that discourage the criminal prosecution of migrants and refugees, especially asylum seekers, for unauthorized entry, and further encourage the accountable use of prosecutorial discretion in the exercise of enforcement measures;
  • Support and promote the establishment of a system of robust and equitable global responsibility-sharing to foster solutions to protracted displacement;
  • Recognize and emphasize the protection of the rights of displaced persons, especially IDPs, to promote their dignity and self-reliance;
  • Protect refugees, migrants, and IDPs from bias and discrimination on any ground, including gender, race, sexual orientation, national origin, and religion;
  • Adopt specific legislative or other measures to provide protections for LGBTI people; and
  • Promote evidence-based and inclusive conversation and decision-making around the issues of migration and displacement.

Download ABA ROLI’s 2018 Issue Paper When People Flee: Rule of Law and Forced Migration, read the final conference report, listen to the conference panel sessions, and watch videos of the keynote addresses from the conference at ambar.org/whenpeopleflee.

Promoting Rule of Law Solutions to Forced Migration

Rule of law development is a powerful tool for creating strong legal frameworks for the prevention of forced migration and the protection of people who flee. It is also a powerful tool for enhancing the capacity of local institutions responsible for the implementation of these legal frameworks in practice. ABA ROLI has identified four rule of law approaches to forced migration: building just legal systems, promoting good governance, strengthening accountability mechanisms, and ensuring empowered protection. Lawyers and rule of law experts play an important role in promoting these approaches in countries of origin, transit, and destination.

Building Just Legal Systems

To prevent displacement and protect those who flee, states must create strong, stable, and publicized legal frameworks, based on the universal principles of equality and nondiscrimination. These legal frameworks should guarantee the right to asylum, offer sound protections for refugees and IDPs, and establish independent and impartial mechanisms through which individuals, including noncitizens, can seek solutions to their justice problems. In addition, national legal frameworks should prohibit refoulement, forced displacement, expulsion of citizens, and collective expulsion. Expulsion of noncitizens should only be allowed on the basis of a lawful decision and due process. It is also imperative to promulgate human rights-based laws to prevent forced migration and reduce the negative effects of displacement. This includes laws pertaining to nationality, statelessness, gender-based violence, smuggling, human trafficking, corruption, and detention. Lawyers and rule of law experts are well-positioned to assist states in improving their legal systems by providing high-impact legal reform assistance to national parliaments, pertinent government agencies, civil society organizations, the legal profession, and the justice system.

Promoting Good Governance

The links between governance and forced migration are complex. On the one hand, poor governance and a lack of transparency are among the chief drivers of displacement. When public institutions are weak, corrupt, and unresponsive to people’s needs, the government loses its legitimacy, which increases the risks of instability, conflict, and displacement. On the other hand, migrant, refugee, and IDP flows pose a complex set of challenges for the local governance structures in countries of transit and destination. Inevitably, an influx of people puts unique pressures on public finance, national and local institutions, and host communities. Lawyers and rule of law experts are well-positioned to assist states in strengthening and improving public trust in government structures by increasing the efficiency and accountability of local institutions; promoting participatory governance, citizen engagement, and public integrity; and improving land, environmental, and natural resource governance.

Strengthening Accountability Mechanisms

Without accountability mechanisms, a key challenge will be implementing the global compacts in practice. Under international human rights law, states have the duty to respect, protect, promote, and fulfill human rights of all individuals within their territory and subject to their jurisdiction, including refugees, migrants, stateless persons, and IDPs. The notion of accountability stems from the obligations of duty-bearers towards rights-holders and demands that states are answerable for the fulfilment of their human rights obligations. Crime, violations of human rights, impunity, and perceptions of injustice are often at the heart of displacement. Therefore, accountability under the law is indispensable both in preventing displacement and ensuring that state and nonstate actors face consequences for violating the rights of those who flee. Lawyers and rule of law experts are well-positioned to assist states in establishing and strengthening their accountability mechanisms in order to curb and respond to displacement, including by improving the capacity of the legal profession, justice systems, and national human rights institutions; facilitating mobile courts and alternative dispute resolution mechanisms for the displaced; enhancing response to sexual and gender-based violence in humanitarian settings; and supporting transitional justice mechanisms.

Ensuring Empowered Protection

Empowered protection means that displaced people and returnees are protected under the law and have the knowledge and resources to exercise their rights. The ultimate goal of empowered protection for displaced people is their security, resilience, self-reliance, and reduced dependence on humanitarian aid. This occurs when they can make autonomous choices about where and how to live; when they feel safe and welcome in their communities; and when they can generate and control income, assets, and other resources. Empowered protection also entails peaceful, safe, and productive co-existence between the displaced and local populations. Accordingly, ensuring empowered protection necessitates support to displaced populations and their host communities. Lawyers and rule of law experts are well-positioned to assist state and nonstate actors in these efforts, including by enhancing displaced people’s access to justice and improving the capacity of local legal aid providers to offer high-quality services to people who flee.

The ABA and its entities will continue to join forces with the international community and local partners to ensure effective implementation of these rule of law solutions in practice.

How ABA ROLI Is Helping Syrian Refugees

Since 2011, more than 5.6 million people have fled Syria to neighboring countries and beyond, escaping a civil war. After making the journey out of Syria, the refugees continue to struggle in their new countries and are largely unaware or unable to access basic rights and critical protection needs, such as access to legal assistance, housing, and education. A majority of Syrians do not live in refugee camps, but are scattered among the urban populations in Armenia, Iraq, Jordan, Lebanon, and Turkey. These individuals require resources to help them navigate legal systems in their host countries, including information on how the law applies to them.

Legal Awareness Program for Syrian Refugees in Turkey

Between 2014 and 2018, ABA ROLI operated a multipronged legal awareness program in Turkey serving primarily the over 3 million Syrian refugee population living outside refugee camps. The program, implemented in strong partnership with Turkish Bar Associations, trained more than 200 Turkish lawyers on the country’s Temporary Protection Regime and other pertinent legal issues. As of March 2018, the network of ABA ROLI-trained lawyers has conducted over 500 legal awareness sessions for over 19,800 Syrians. More than 175 of these sessions were held for women and youth and addressed issues such as personal status laws, domestic violence, forced and early marriage, child labor, access to employment and housing, citizenship, and family reunification. Turkish lawyers have also provided private legal information to over 5,350 individuals, mostly through a text message (SMS) helpline, which fielded approximately 100 requests for legal information a month. Further, ABA ROLI has conducted a robust media campaign delivered via Facebook, a mobile app, popular websites, YouTube, and radio, reaching over 250,000 Syrians. Out of nearly 700 program beneficiaries surveyed in September 2017, more than 80 percent responded that as a result of the legal information received from ABA ROLI’s project, they took, or had immediate plans to take, steps to resolve their legal issues.

Refugee Legal Aid Program in Armenia

From 2016 to 2018, ABA ROLI operated a holistic legal aid program for refugees in Armenia funded by the U.S. Department of State, Bureau of Population, Refugees, and Migration (PRM).

ABA ROLI operates a holistic legal aid program for refugees in Armenia funded by the U.S. Department of State’s Bureau of Population, Refugees, and Migration (PRM). Its Refugee Legal Assistance Center (RLAC) helped displaced and conflict-affected persons (including Syrian refugees and displaced Azerbaijani Armenians) meet their most immediate resettlement needs and build successful livelihoods in the new country. The assistance offered by RLAC focused on access to housing, land, property, education, healthcare, employment, credit, identification documents, and social benefits. It also covered Armenia’s complex business and tax laws. RLAC pursued several strategic litigation cases, resulting, for example, in refugees having their work credentials and certifications reinstated for the purposes of obtaining pensions. Finally, RLAC educated refugee children about their rights and responsibilities.

About the ABA Rule of Law Initiative

ABA Rule of Law Initiative (ABA ROLI) is an international development program that promotes justice, economic opportunity, and human dignity through the rule of law. For more than 25 years, and through its work in more than 100 countries, ABA ROLI and its partners have sought to strengthen legal institutions, support legal professionals, foster respect for human rights, and advance public understanding of the law and of citizen rights. ABA ROLI has roughly 500 professional staff working in the United States and abroad, including a cadre of short-term and long-term legal specialists, volunteers, interns, and third-party contributors, who in fiscal year 2017 contributed $1.8 million in pro bono legal assistance. To learn more about ABA ROLI and its programs around the world, please visit www.abaroli.org or e-mail rol@americanbar.org.

Paulina (Paula) Rudnicka is an Advisor in the Research, Evaluation, and Learning Division of the American Bar Association Rule of Law Initiative (ABA ROLI) and co-author of ABA ROLI’s 2018 Issue Paper When People Flee: Rule of Law and Forced Migration. The author wishes to cordially thank Dr. Linda Bishai, Director of ABA ROLI’s Research, Evaluation, and Learning Division, who spearheaded the related Conference on Contemporary Rule of Law Issues and authored the post-conference report; Dr. Elizabeth Ferris, a Research Professor at the Institute for the Study of International Migration at Georgetown University, who co-authored the issue paper; ABA ROLI Board of Directors, staff, and interns; members of the Expert Working Group on the Rule of Law and Forced Migration; and the many contributors, reviewers, and participants who gave their time and expertise to assist with the paper, conference, and subsequent report.