Survival migration: A new protection framework

Global Governance

Volumn 16, Issue 3, 2010, Pages 361-382

  Betts, Alexander ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

Africa; Complementary protection; Human rights; Refugees; Regime stretching; Survival migration

Indexed keywords

EID: 77957068493     PISSN: 10752846     EISSN: 19426720     Source Type: Journal    
DOI: 10.1163/19426720-01603006     Document Type: Article

References (65)

1. Alexander Betts and Esra Kaytaz, "National and International Responses to the Zimbabwean Exodus: Implications for the Refugee Protection Regime," New Issues in Refugee Research, Working Paper No. 175 (Geneva: UNHCR, 2009).
2. Jeff Crisp, "Beyond the Nexus: UNHCR's Evolving Perspective on Refugee Protection and International Migration," New Issues in Refugee Research, Working Paper No. 155 (Geneva: UNHCR, 2008).
3. Anna Schmidt, "Negotiating Policy: Refugees and Security in Tanzania and Uganda," paper presented at the annual meeting of International Studies Association, San Francisco, March 2008.
4. Anthony Richmond, "Reactive Migration: Sociological Perspectives on Refugee Movements," Journal of Refugee Studies 6, no. 1 (1993): 7-24.
5. This term was used, for example, by the UNHCR in the context of the International Conference on Refugees in Central America (CIREFCA) in the 1980s and 1990s.
6. Guy Goodwin-Gill, "Non-refoulement and the NewAsylum Seekers," Virginia Journal of International Law 26 (1986): 897.
7. Sarah Collinson, "Globalisation and the Dynamics of International Migration: Implications for the Refugee Regime," New Issues in Refugee Research, Working Paper No. 1 (Geneva: UNHCR, 1999)
8. Alexander Betts, "Towards a Soft Law Framework for Protection of Vulnerable Irregular Migrants," International Journal of Refugee Law 22, no. 2 (2010): 209-236.
9. Andrew Shacknove, "Who Is a Refugee?" Ethics 95, no. 2 (1985): 274-284.
10. Jane McAdam, Complementary Protection in International Refugee Law (Oxford: Oxford University Press, 2007).
11. See Article 1 (2) of the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.
12. See Conclusion 3 of the 1984 Cartagena Declaration on Refugees.
13. See Article 15 of the Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, 19 May 2004, 2004/83/EC.
14. Michelle Foster (2009), "Non-refoulement on the Basis of Socio-Economic Deprivation: The Scope of Complementary Protection in International Human Rights Law," New Zealand Law Review (forthcoming).
15. The decision in Adam v. Secretary of State for the Home Department (House of Lords) provides a good example of the application of the ECHR to cover economic and social rights. In that matter, the House of Lords held that an asylum applicant was subject to inhuman or degrading treatment when he was left without any support from the state because he failed to apply for asylum in the prescribed time period. Lord Bingham held that: A general public duty to house the homeless or to provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. When does the Secretary of State's duty. arise? The answer must in my opinion be: when it appears on a fair and objective assessment of all the relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life.
16. The idea of survival migration is not entirely new, and has been used in different contexts such as Oded Stark and Edward Taylor's work on the "new economics of migration," in which they see migration as part of a household "survival strategy." However, this article's application of the concept to consider institutional questions of response to externally displaced people is new.
17. See, for example, Oded Stark and Edward Taylor, "Relative Deprivation and International Migration," Demography 26, no. 1 (1989): 1-14.
18. James Hathaway, "Forced Migration Studies: Could We Agree Just to 'Date'?" Journal of Refugee Studies 20, no. 3 (2007): 349-369.
19. Henry Shue, Basic Rights (Princeton: Princeton University Press, 1996); Shacknove, "Who Is a Refugee?" pp. 274-284.
20. Unless one buys into the normative and negative rights violations to distinguish "persecution" from other rights violations, such as generalized violence, then privileging basic security and basic liberty over basic subsistence is an arbitrary delineation. For the counterargument
21. see Matthew Price, Rethinking Asylum (New York: Cambridge University Press, 2009).
22. It is worth noting that this definition is not necessarily expansive and needs not necessarily imply permanent protection. Rather, it is intended to highlight the situations in which a fundamental set of rights is simply unavailable within the country of origin and can only be found in another country, but in a way that does not arbitrarily exclude certain types of rights violations.
23. Adapted from Trygve G. Nordby, IFRC special envoy on migration, keynote speech, High Commissioner's Dialogue on Protection Challenges, Geneva, December 2007.
24. Alexander Betts and Esra Kaytaz, "National and International Responses to the Zimbabwean Exodus";
25. Tara Polzer, "Responding to Zimbabwean Migration in South Africa: Evaluating Options," South African Journal of International Affairs 15, no. 1 (2008): 1-15.
26. Consortium for Refugees and Migrants in South Africa (CoRMSA), "Protecting Refugees, Asylum Seekers and Migrants in South Africa" (Johannesburg, South Africa: CoRMSA, June 2008), p. 17.
27. Florencia Belvedere, director, Crown Mines Refugee Reception Office, Department of Home Affairs, interviewed by the author, Johannesburg, South Africa, 30 March 2009.
28. Kajaal Ramjathan-Keogh, head of Refugee and Migrant Rights Programme, Lawyers for Human Rights, interviewed by the author, Johannesburg, South Africa, 18 March 2009.
29. For history of Zimbabwe, see Martin Meredith, Robert Mugabe: Power, Plunder and Tyranny in Zimbabwe (Chicago: Public Affairs, 2002)
30. Simon K. Moyo, ambassador, interviewed by the author, Pretoria, South Africa, 30 March 2009.
31. Belvedere interview.
32. IOM, "Towards Tolerance, Law and Dignity: Addressing Violence Against Foreign Nationals in South Africa" (Pretoria, South Africa: IOM).
33. Zimbabwean migrants, interviewed by the author, Johannesburg, SouthAfrica, 1 April 2009.
34. Human Rights Watch, "Neighbors in Need: Zimbabweans Seeking Refuge in SouthAfrica," 2008, available at www.hrw.org;
35. Médecins Sans Frontières, "No Refuge, Access Denied: Medical and Humanitarian Needs of Zimbabweans in South Africa," 2009, available at www.msf.org.
36. Alice Mogwe, director of Ditshwanelo, interviewed by the author, Gaborone, Botswana, 25 March 2009.
37. Beleme Gelafele, program officer, UNHCR Botswana, interviewed by the author, Gaborone, Botswana, 28 March 2009.
38. Marcus Betts, UNICEF deputy representative to Botswana, interviewed by the author, Gaborone, Botswana, 25 March 2009.
39. Monica Kiwanuka, Zimbabwean Migration into Southern Africa: New Trends and Responses (Johannesburg, South Africa: Wits, 2009).
40. However, there is currently an effort by some groups, non-UN, who are advocating for the private treatment of HIV-positive migrants, though it is expected that they will have difficulties getting government approval. They want to provide preventing mother-to-child transmission (PMTCT) to all pregnant HIV-positive mothers, legal or illegal. Personal correspondence with Roy Hermann, UNHCR representative to Botswana, personal communication (e-mail) with the author, Botswana, 25 May 2009.
41. Marcus Betts interview.
42. This is based on UNHCR statistics of the number of refugees and the proportion that are children. However, extrapolation from the refugee population to the undocumented migrant population is not unproblematic because the proportion of children may be higher in the refugee population, whereas undocumented migrants may be more likely to be individuals seeking employment than families.
43. Lame Papys, MSF Belgium, interviewed by the author, Kinshasa, Democratic Republic of Congo, 9 November 2009.
44. UN Office for the Coordination of Humanitarian Affairs (OCHA), "Point Sur Les Expulses d'Angola au 15.10.09" (Note of expelled Angolans, 15.10.09), 2009, on file with the author.
45. MSF, "Women Tell of Their Angolan Ordeal," 2007, available at http://doctorswithoutborders.org/news/article.cfm?id=2232&cat=field-news.
46. Emmanuel Lampaert, medical coordinator, MSF Belgium, interviewed by the author, Kinshasa, Democratic Republic of Congo, 9 November 2009.
47. Ebba Kalondo, freelance journalist, interviewed by the author, Kinshasa, Democratic Republic of Congo, 11 November 2009.
48. Mohamed Toure, assistant regional representative, UNHCR, interviewed by the author, Kinshasa, Democratic Republic of Congo, 10 November 2009.
49. Richard Guerra, head of coordination, OCHA, interviewed by the author, Kinshasa, Democratic Republic of Congo, 12 November 2009.
50. Toure interview.
51. Mr. Chuleha, assistant zonal coordinator, Department of Refugee Affairs, interviewed by the author, Kigoma, Tanzania, 15 September 2009.
52. Hans Hartmark, protection officer, UNHCR, interviewed by the author, Kigoma, Tanzania, 15 September 2009.
53. Mr. Konecko, head of UNHCR Field Office, interviewed by the author, Kasulu, Tanzania, 16 September 2009.
54. See, for example, James Milner, Refugees, the State, and the Politics of Asylum in Africa (Basingstoke, England: Palgrave-Macmillan, 2009).
55. Matthew Albert, "Prima Facie Determination of Refugee Legal Status: An Overview of Its Legal Foundation," Refugee Studies Centre Working Paper No. 55 (Oxford, England: RSC, 2010).
56. Peter Klansoe, regional director, Danish Refugee Council, interviewed by the author, Nairobi, Kenya, 14 May 2009.
57. UNHCR, "Some 74,000 Africans Cross Gulf of Aden to Yemen in Recordbreaking Year," 18 December 2009, available at www.unhcr.org/4b2bac179.html.
58. UNHCR, "Yemen-Record Number of Arrivals by Sea from the Horn of Africa," 18 December 2009, available at www.unhcr.org/4b2b6d639.html.
59. UNHCR, "Global Needs Assessment: Yemen," available at www.unhcr.org/pages/49e486ba6.html.
60. IRIN News, "Bracing for a Fresh Influx of Somali Refugees," available at www.irinnews.org/Report.aspx?ReportId=85943.
61. Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999).
62. Ernst Haas, The Uniting of Europe (Palo Alto, CA: Stanford University Press, 1958).
63. Interviews were carried out with UNHCR staff in Botswana, Djibouti, the DRC, Ethiopia, Kenya, South Africa, and Tanzania between March and November 2009.
64. A. Betts, "Towards a Soft Law Framework."
65. Antonio Guterres's speech, in which he called for a supplementary agreement or additional protocol to the 1951 Refugee Convention, was documented in "La Distinction Entre Réfugiés et Déplacés est Depassée," Le Monde, 16 December 2009.