Durable Solutions: 5 Implementation Challenges and Possible Pathways for Improvement

The UNHCR has stated that the ultimate goal of international protection is achieving the implementation of durable solutions for refugees. Assessing whether existing durable solutions, as protection instruments, are effective and adequate as they are being implemented is, thus, imperative. Currently, and even though UNHCR recognises that its capacity for providing international protection to refugees is intimately connected to its success on providing durable solutions, there seem to be relevant challenges for durable solutions for refugees.

The first challenge relates to the fact that none of the three durable solutions – voluntary repatriation, local integration and resettlement – have binding legal basis in International Refugee Law. The core documents do not contemplate mandatory norms regarding durable solutions; they are, thus, neither rights nor obligations.

The discretion of States in terms of durable solutions brings difficulties for the protection of refugees concerning access to rights. To face this challenge bringing International Refugee Law and human rights closer can be seen as one pathway: if binding protection by means of durable solutions in International Refugee Law is lacking, such obligation is abundant in International Human Rights Law, especially in relation to economic, social and cultural rights, which ensure access to services and rights and must be implemented for refugees as well as to any human being; especially considering that States do have obligations to any person under their jurisdiction.

The lack of international cooperation for the protection of refugees is the second challenge for durable solutions. The majority of refugees – 86% – live in developing countries. This, combined with the fact that 95% are in neighbouring countries, shows that the distribution of the “burden” of refugees is unequal. The impact on developing countries is disproportionate numerically speaking, and in relation to their own existing infrastructure. On the other hand, countries that could receive a larger number of refugees, for example via resettlement, seem unwilling to share the responsibility: as “only 1% of the world’s refugees are submitted for resettlement consideration every year, and only about 10% of the refugees in need of resettlement are accepted”.

Also in the issue of cooperation, States need to contribute to resolving persisting conflicts – such as in Colombia, Afghanistan, Iraq, Sudan and Syria. These conflicts make the implementation of voluntary repatriation impossible, as it can only be achieved when countries of origin are capable of offering protection to returnees.

A pathway out of this challenge would be to strengthen the concept and practice of responsibility sharing: to encourage and enhance international cooperation to solve a problem which is global. In light of this, the role of international institutions is relevant. The strengthening of these institutions is both the third challenge for durable solutions and the pathway to improving them.

International institutions are important as facilitators of refugee protection in two ways. The first, linked to international cooperation, requires that such institutions – particularly International Organisations – divulge the relevance of the refugee issue, the importance of local actions and the enshrined right of refugees to receive international (integral) protection. Moreover, private institutions can contribute to the implementation of durable solutions and need to be inserted into the logic of humanitarian protection, not only by investing in the development of host communities that often have infrastructure problems, but also by acting directly and assisting in the inclusion of refugees in local societies.

The second aspect results from perceiving norms as institutions. In the present scenario, rules of International Refugee Law have emerged mainly regionally, which could lead positively to proposals for durable solutions tailored for each region; but this needs to be complemented by advancements that have universal reflexes.

The strengthening of integral protection in countries of refuge is the fourth challenge. Integral protection of refugees will only be possible if access to adequate procedures for determining refugee status and access to all the rights that refugees are entitled to – either as refugees or human beings (through human rights) – are combined. Therefore it is necessary to emphasise two main pathways to face this challenge: public policy and development.

Refugees need to be included in public policies that aim to implement human rights in general, and it is also necessary to create specific policies that take into account the peculiarities of people while they are refugees. Issues of numbers – whether too high or too low – or participation in the political processes of host societies may arise and need to be tackled through an optic of inclusion and human rights.

Moreover, it is necessary to improve the development of host communities. Countries that receive large numbers of refugees should be assisted by the financing of the basic and immediate needs of refugees, followed by the financing of development actions in local communities. This would provide access to effective and durable solutions and empowerment not only to refugees but also to host communities, thus generating a better balance for the integral protection of refugees and for the implementation of human rights in general. Such logic would promote the consolidation of local integration as well as its strengthening as a preferred solution in a scenario where the return to countries of origin and resettlement places are far from the ideal.

A final challenge relates to the implementation of possible improvements. Writing on refugee camps, Jeff Crisp identifies five challenges of implementation that can be applied analogously in an analysis of durable solutions: 1) the support of host countries to amendments or new approaches to durable solutions, which is a matter of international cooperation and political will; 2) the participation and persuasion of other actors to financially support areas that receive refugees, benefitting host communities and refugees, thereby enabling empowerment through access to rights – especially social rights – and not based only on assistance; 3) convincing the local community to accept the enduring presence of refugees, which wouldn’t be a problem if the mentioned empowerment-logic is adopted; 4) the sense that it is necessary to adapt solutions to specific vulnerabilities and different protection needs of individuals and/or certain groups; and 5) UNHCR’s actions in light of a complex migration scenario.

From all the above, one can see that the challenges are relevant. However the (i) approximation to International Human Rights; (ii) enhancement of international cooperation; (iii) strengthening of international institutions, whether in relation to Organizations or norms; (iv) reinforcement of the idea that the refugee question is a global issue and universal measures must be adopted, including actions to improve the integral protection of refugees in host communities; (v) inclusion of refugees in the elaboration of public policies in host communities; (vi) assistance by the international community to countries of refuge in their development, including by the private sector; and (vii) adoption of a logic that the refugee issue must be confronted by global measures, may be regarded as available pathways to face such challenges and improve durable solutions.

Article based on André de Lima Madureira’s Master’s Dissertation at Universidade Católica de Santos (UniSantos) – Brazil.