Thinking Long–term: A Foundational Framework for Durable Solutions for Refugees

The world is currently facing the biggest refugee crisis since the Second World War. The debate so far has rightly focused on traditional refugee protection topics, such as access to safe territories and adequate Refugee Status Determination (RSD) procedures. However, as refugees are uprooted from their daily lives for an average of 20 years, durable, longer-term solutions need to enter the debate on refugee protection, as ways to “end the cycle of displacement resolving their plight so that they can lead normal lives”. The United Nations High Commissioner for Refugees (UNHCR) focuses on three durable solutions: local integration, resettlement and voluntary repatriation. Currently, though, there is little research and analysis being done on durable solutions especially when compared with traditional protection topics. This post offers some ideas on what a foundational framework for durable solutions might look like.

The proposed framework is based on six foundations:

1) Durable solutions as an intrinsic part of refugee protection: Notwithstanding the principle of non-refoulement, access to safe territories and access to adequate RSD procedures are vital for the refugee regime; if durable solutions are not in place, violations of rights may still exist and it cannot be argued that there is actual and comprehensive protection. If refugees don’t have access to adequate living conditions (including health, labour, education and housing) their human rights are still being violated. Integral protection (i.e. the combination of their rights as refugees and their rights under human rights law) is the goal and this requires that traditional refugee protection and durable solutions are in play.

2) Durable solutions as a direct consequence of non-refoulement: The obligation of not returning refugees to places where their lives, safety or liberty are at risk means that refugees need to stay inside States’ territories. This, in turn, means that States have to respect refugees’ rights as they have obligations in respect of all people within their territory/jurisdiction, both under the 1951 Convention and human rights treaties.

3) Enhanced dialogue with international human rights law: Refugee are entitled to the protection of all their rights particular to their condition as refugees as well as their human rights. Assessing refugees’ rights and protection through a human rights’ lens would improve the legal basis of durable solutions, given that if there are no binding norms on them in international refugee law, the rights that are protected by them are abundant in human rights obligations. In this sense, whatever the legal basis or scope of the framework, the rights being protected would be seen as already having a hard law basis in international human rights law (as, for instance, the rights to housing, education, labour and health).

4) A rights-based approach: Assistance is extremely relevant at least at the early stages of durable solutions or of a refugee’s flight, so a needs-based approach will always be in play. However, this should be combined with a sense that refugees are entitled by rights to access their human rights in all phases of their refugeehood. Hence, a combination of needs-based and rights-based approach would be the ideal of any proposal. However, if it comes to a scenario in which one of them needs to be preferred, the rights-based approach would be more encompassing and protective and, thus, should be chosen.

5) Combination of both legal and policy approaches: The dichotomy between protection and solutions is illusory, and refugees need to be protected by both law and public policies, i.e. by all appropriate measures. This could also benefit the host communities and States, and therefore, bring forth actual durable solutions.

6) Measuring durable solutions’ efficacy: This would allow for assessing whether or not the solutions are actually positing perspectives for refugees and granting them access to all of their rights; as well as look for manners in which durable solutions would be able to be so for both refugees and the regime as a whole, benefiting individuals, groups and the continuation of international protection by States.

A framework for durable solutions needs to be created if the human rights of refugees are to be principally, holistically and comprehensively protected. Its main goal should be to balance States’ interests and refugees’ needs and, thus, allow for effective and actual ways in which refugees can rebuild their lives, end the cycle of displacement, and enjoy the full and proper fulfilment of all of their rights.