Co-authored with Elena Chachko at Harvard University
The United Nations estimates that over one million individuals have fled the Ukraine to neighboring countries within just one week of the Russian invasion. The conflict is creating yet another massive displacement, adding to ongoing recent crises in Syria, Afghanistan, Iraq, Central America and elsewhere.
This time, however, the international response has been swift and comprehensive. Fillippo Grandi, the head of UNHCR, tweeted that the European response was unprecedented, noting that millions will receive immediate protection. But this isn’t just a shockingly fast response, it’s also legally novel and worth emulating.
The response to the invasion of Ukraine is the best contemporary example of genuine responsibility sharing, an increasingly significant yet underexplored concept in refugee law and policy. Although commentators have rightly criticized the disparity between the European response to Ukraine and other recent migration flows involving middle eastern asylum seekers, and highlighted instances of racial discrimination at the border, the positive features of the response model are worth analyzing—and replicating.
Once the Russian invasion began, neighboring European nations opened their borders to Ukrainians and many others living in Ukraine. The European Council just decided to grant Ukrainian nationals and others the right to live, work and receive benefits in any EU country they choose, for at least one year and likely longer. Protection seekers have never before enjoyed this degree of choice over the country where they will live and work.
To be sure, individual EU member states, the U.S. and many other countries have granted temporary protection before. But this is different. To start, the EU offer of protection is general and prospective – it applies to Ukrainians who recently fled and also those who will flee later.
In contrast, when U.S. Secretary of Homeland Security Alejandro Mayorkas designated Ukraine for temporary protected status, the protection only applied to people already living in the United States before March 1. And in the recent past, while individual EU states have ultimately granted the overwhelming majority of protection requests from Syrians, and select others, these decisions were made on a national basis, with many and varied procedural hurdles.
This time, the EU response is broad-ranging and fast. The EU Council decided to activate the never before used EU Temporary Protection Directive, a 2001 directive developed in response to the war in the Balkans to deal with mass influxes of refugees fleeing conflict.
As is typical in temporary protection, Ukrainians and others fleeing the Ukraine will get immediate protection, without having to prove, as required under international refugee law, that they personally were persecuted. What is unprecedented under this plan is that Ukrainians are able to “choose the Member State in which they want to enjoy the rights attached to temporary protection and to join their family and friends across the significant diaspora networks that currently exist across the Union, rather than needing to apply for protection and stay in the first EU state they reach.”
The temporary protection directive, and the council decision implementing it, is also generous in its definition of a family, to include not only spouses and minor children, but also other close relatives living with and dependent on the sponsor. These rights apply automatically and across the EU to Ukrainians and also to persons under international protection (such as refugees) in Ukraine. EU member states have discretion on whether to extend these protections to other residents of the Ukraine, and many will.
Poland and Hungary supported these extraordinary measures and the council’s decision was unanimous. This is surprising considering that, in 2015, Poland and Hungary led the opposition to the EU emergency measures adopted to address the mass refugee crisis produced by conflicts in the Middle East.
At the time, the EU triggered its so-called migration solidarity mechanism intending to transfer 160,000 asylum seekers from the most heavily impacted member states—Greece and Italy—to the other EU members. The measures imposed binding quotas for each member state. Poland and Hungary refused to admit any asylum seekers, ignored their allocated quota, and even unsuccessfully challenged the measures at the European Court of Justice.
But during the current refugee crisis, these countries are sympathetic to robust steps at both the national and EU level. Popular sympathy for the Ukrainians, and the specter of further Russian westward expansion were likely key contributing factors. Whatever the ironies, an EU-wide response allows real choice and significant benefits to protection seekers.
The Spectrum: Responsibility Sharing vs. Responsibility Dumping
The Ukraine crisis once again highlights the pathologies of the traditional refugee regime. States neighboring refugee-producing countries take in large influxes of displaced individuals over short periods of time. They are disproportionately affected, and they may be ill-equipped to meet the resource, administrative and security challenges related to hosting large numbers of displaced persons.
Furthermore, other states may have a duty to contribute their fair share. They may have played a role in instigating a refugee crisis, as the United States had done in Afghanistan. Or, like in the Ukraine, they may share historic and political bonds with the refugee-producing state.
However, international refugee law focuses on individual protection seekers, their right not to be turned back to danger (non-refoulement), and their well-founded fear of persecution based on individual circumstances. It overlooks systemic concerns such as handling large groups of individuals at once, fair distribution and the obligations that states may have toward one another in addressing refugee crises.
Finally, international refugee law primarily focuses on the resettlement and related rights of recognized refugees, not asylum seekers writ large. But individualized status recognition may not be possible in the face of mass influxes of asylum seekers. Regional systems in the Americas and Africa are more responsive.
Several states and international actors, including the United States, the European Union and the United Nations, have also advocated for better refugee responsibility sharing arrangements. They have put forward different responsibility sharing models. In recent work, we evaluate an array of responsibility sharing arrangements that have emerged around the world.
We distinguish between progressive responsibility sharing arrangements—ones that genuinely seek to transfer asylum seekers to safer, more affluent countries with robust asylum bureaucracies—from regressive arrangements that do the opposite and in fact constitute responsibility “dumping.” We place various arrangements on a scale from progressive to regressive based on four parameters: hosting commitments; monetary component or equivalent non-monetary assistance and whether they reflect actual asylum seeker hosting costs; bilateral versus multilateral arrangements; and the existence of legally binding implementing instruments.
For example, the Trump administration’s Asylum Cooperative Agreements (ACAs) with Guatemala, Honduras and El Salvador, now defunct, were a clear instance of responsibility dumping. They allowed the United States to transfer asylum seekers to one of those three countries to avoid processing their asylum requests. Those agreements were highly regressive. They purported to transfer asylum seekers to less safe, less institutionally competent, less affluent countries without adequate offsetting U.S. contributions. The United States effectively coerced the three governments by withholding U.S. aid.
By contrast, the 2015 EU migration Solidarity Mechanism was a progressive model. An allocation formula based on objective parameters such as member state size and GDP determined the quotas each member state was required to admit. A binding legal measure enshrined the quotas. Despite uneven implementation and political backlash, tens of thousands of asylum seekers were relocated under this framework from weaker EU members to stronger ones.
Similarly, the United States’ response to the Afghan refugee crisis following the U.S. withdrawal from the country encapsulates impressive progressive elements, on a scale rarely seen in U.S. refugee policy. The response included significant resettlement commitments in the United States, a substantial allocation of funds, a global effort to coordinate responsibility sharing for the crisis among many countries, as well as facilitating legislation that created a targeted resettlement priority program.
There are still key shortcomings of our Afghan response, including long delays due to background checks for refugees who helped the U.S., a humanitarian parole system that is not working well, and the Afghan Adjustment Act which is nowhere close to passing. Still, it is worth noting the comparatively generous U.S. response.
That said, the EU’s Ukraine measures go much further than any of these generous initiatives in the recent past. The plan applies to all Ukrainians seeking protection, not just recognized refugees, and to their family members broadly defined. It also applies, on the same terms, to stateless persons and refugees from the Ukraine. Individual EU member states are also extending these protections to permanent residents of Ukraine.
The EU and its members backed these measures in practice by instructing border guards to let people through. These substantial hosting commitments are also supported by generous funding. Ukrainians will not only be permitted to remain in the EU. They will also gain access to work, education, health and other benefits.
The European response to the Ukrainian refugee crisis is therefore at the very progressive end of our scale. Every one of the four elements of progressivity in our framework is met: there are significant hosting commitments, significant monetary commitments, a multilateral framework and a legally binding framework. Indeed, the EU council allowed Ukrainians to select the country they will live and work in, a practice so novel we did not put it in our initial typology. The Ukraine response should be the model for handling future mass displacement situations.