Ukrainians evacuated from Irpen by Kyiv’s territorial defense battalion, March 3, 2022. Image credit: Drop of Light / Shutterstock
Images of the now more than three million Ukrainian refugees are seared in our minds—we see them crowding onto trains and buses, camping out in hastily constructed mass reception areas, mothers clutching children, aid workers extending a hand, or a bottle of water. Those who have fled are exhausted; shattered by what and whom they have left behind, with no clear idea of what lies ahead.
We have seen similar pictures before: tens of thousands of Afghans escaping the Taliban take-over; nearly a million Rohingya fleeing into Bangladesh to avoid rape and murder in Myanmar; more than five million Syrians forced out of their homes by years of brutal conflict.
Leah Zamore, among other commentators, has noted the difference in the European response to these humanitarian crises. After an initial German welcome, Syrians were met with border walls and armed guards, forced eventually into abysmal camps on Greek islands. Returns of Afghans ceased after the Taliban victory, but Europe has hosted only a small percentage of Afghan refugees and most are stuck in a lengthy asylum process that will yield uncertain results. Europe has sent money for assistance to the Rohingya in Bangladesh, but no effort has been made to help people out of the overcrowded camps or to provide a solution to their refugee status.
It is surely fair to demand of Europe consistency in its response to the refugees—international law indeed demands it: when European border officials let in Ukrainians but place obstacles in the way of persons of other nationalities fleeing the violence in Ukraine, they are violating the norm of non-discrimination that is fundamental to refugee law.
There are good reasons to criticize some of the ways European countries have been handling refugees from the war in Ukraine. But I want to examine the current situation in a broader context, to see what it says about the contemporary global protection regime.
On the positive side, countries generally leave their borders open to refugees fleeing crises in their immediate neighborhood. So, one way to think about the European response to Ukrainians is to compare it to the willingness of Turkey, Jordan, and Lebanon to accept millions of Syrian refugees, and Bangladesh taking in hundreds of thousands of Rohingya.
From this perspective, the harsh measures adopted by the European countries toward Syrians are of a different nature—it sought to prevent movement from countries of first asylum, not from the refugees’ country of origin. This is not to defend the measures adopted or to say that they complied with international legal norms; it is rather to notice that in an important respect, the international refugee regime generally accomplishes its goal of providing safety protection to those fleeing across borders to avoid serious harm in their home state.
Where the protection regime breaks down is what happens after initial safety is granted. The international refugee regime lacks a global responsibility-sharing system; so the vast majority of the world’s refugees stay—for years and years—in the states to which they first flee. In essence, most refugees are forced out (from their home state) and then locked in (in the country of first asylum), unwilling to return to dangerous conditions at home and unable to move to other states where they could better provide for themselves and their families, and re-establish community.
Still, every fresh refugee crisis is an opportunity to reform the international system—and the current crisis in Ukraine is no exception.
First, it could spark the development of a global (or at least regional) responsibility-sharing system. This failed during the Syrian refugee flow of 2015 when several states rejected a Union-wide plan for the distribution of asylum-seekers. But the response to the Ukrainian refugees appears to be different, with nations like Poland and Hungary—that rejected the Syrians—leaving their borders open.
Second, it could open up discussions of refugee mobility. The EU Directive that grants temporary protected status to the Ukrainians allows the refugees to, in effect, choose their first country of residence; but it does not expressly provide movement among EU states once the status has been granted. In this way, it perpetuates the usual practice of locking in refugees to countries of first asylum. Political pressure should be brought on EU members to permit the free movement of Ukrainian refugees within the EU. Mobility rights would surely benefit refugees and refugee families and would also likely lessen financial costs for hosting states as Ukrainians move to where they can more easily prosper.
Third, the present response shows the possibility of a robust role of private efforts to assist refugees. No camps have been established for Ukrainian refugees. Rather, they have been welcomed into the homes of hosting families. Already a website has been developed to link refugees with those willing to host them. Canada has permitted private sponsorship of refugees for decades, and the Biden administration blessed a civil society initiative to foster community sponsorship of Afghans arriving in the US (the Afghans entered under a “parole” program that grants them temporary status, and not as refugees). Widely adopting private sponsorship programs could dramatically increase the number of refugees resettled out of countries of first asylum each year.
Perhaps the Ukrainian refugee crisis will simply reinforce the usual views of advocates that the European refugee and asylum system is biased and unprincipled. But it could also provide the basis for an important rethinking of the current international system of refugee protection.
T. Alexander Aleinikoff is a university professor and director of the Zolberg Institute on Migration and Mobility, The New School.