Professor Goldenziel’s views are her own and do not necessarily reflect those of her University, the Department of Defense, or any other arm of the U.S. government.

Vital Interests: A persistent global crisis of past decades that has gotten progressively worse is the plight of refugees and migrants. Can you give us an overview of the dimension and circumstances of refugees and migrants in the world today.

Jill Goldenziel: First, the media often blurs the distinction between refugees and migrants.The 1951 UN Convention Relating to the Status of Refugees defines a refugee as someone who has crossed an international border fleeing persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group. 

That’s a very narrow category that sets the parameters for most of the world’s asylum criteria. Usually,  the burden of proof is on asylum seekers to provide documentation that demonstrates they meet one of these categories in order to obtain refugee status. This is often very difficult to do since individuals fleeing for their life don’t necessarily bring all their documents. The law sets a very high bar, which a lot of people don’t realize.

Migration occurs for a lot of reasons. People fleeing war and generalized violence would not necessarily be classified as refugees. They would be classified as migrants. “Migrant” is not a term that is defined in international law, nor is “forced migrant.”

Forced migrant is a bucket term that includes a broader category of people than those legally defined as refugees. It is used to refer to anybody who migrates, not out of choice, but because they are forced to do so by  circumstances such as localized violence, poverty, drought, flooding, climate change, or other reasons. 

Another term the media often uses is “economic migrants”--people who leave their country to seek economic opportunity. These account for the vast majority of the world’s migrants.

Many of those categories overlap. Lines are certainly not easy to draw, particularly in terms of refugees. Refugees do have different and higher protections under international law than the other categories. Economic migrants and forced migrants who are not refugees are not protected by the 1951 Refugee Convention. But some regional agreements, like the Cartagena Declaration, include broader protections for other types of migrants. 

“Internally Displaced Person” (IDP) refers to a person displaced within their country of origin or habitual residence. It is not a term in international law, but international guidelines known as “the Deng Principles” were developed by the UN and have been incorporated into some domestic laws.

There is no international law dealing with IDPs--for good reason. IDPs have different legal concerns than people displaced outside their own country because they remain in their country of origin or habitual residence. Because of sovereignty, their own countries are legally responsible to protect their human rights and assist them. They have the legal protections of citizenship or habitual residence, including the ability to work, obtain travel documents, and access public assistance and services.   This is not to minimize their plight. They are often in even more dire straits than migrants or refugees. And their rights in their own state may exist de facto but not de jure. But different legal regimes apply to IDPs than refugees and other kinds of migrants, largely because of sovereignty. And different laws have different implications for if and how the international community can assist people in need.

What we’ve seen in recent years in terms of migration flows is only the tip of the iceberg. Climate change is expected to cause unprecedented migration particularly within and out of Africa in the coming decades. Recent events have shown that the countries to which people are migrating are not prepared to receive such a mass influx of migrants. They are not prepared with the necessary processing infrastructure, legal and otherwise, to take in large numbers of migrants. Politically or practically, many countries have shown themselves to be unready, unable, or unwilling to do the serious work that is needed to integrate migrants into society.

If countries can’t handle current migration flows or are refusing to do so, they are hardly going to be ready for what’s to come. Major global instability may occur as a result. 

VI: In these different categories, where do displaced people fall? Are they in the refugee category? Many are fleeing conflict and war and are often forced across a neighboring border, for example the thousands of Syrians in Jordanian camps. 

Jill Goldenziel: “Displaced persons” is another term that is not defined in international law.  Colloquially, the term is used as roughly synonymous with “forced migrant,” but can also refer to populations temporarily displaced inside or outside their country of origin as a result of international or non-international armed conflict.  In my work, which has gained some traction with practitioners, I define “displaced person” as people compelled to leave their habitual place of residence and cross an international border whose flight threatens international peace and security, in accordance with Article I of the UN Charter. 

tVI: In other words, they would not qualify for the asylum definition, if these people made it out of the camps and into Europe and they applied for asylum, the officials would say, “You’re a displaced person, not a refugee. You need to go back to wherever you came from.”

Jill Goldenziel: To clarify, “Displaced Person” is not a term under international law so they wouldn’t say, “You’re a displaced person.” I think of refugees as a subset of displaced people. Refugees and Displaced Persons are displaced because they don’t want to be. But Displaced Persons don’t have the higher level of legal protections that refugees do because of the reasons that they fled. It’s possible that one could be a refugee without being a “Displaced Person” if their flight did not threaten international peace and security. For example, the arrival of a single Chinese political asylee in the U.S. would be unlikely to threaten international peace and security.

VI: To add to the confusion there is another term that’s used which is “stateless persons.” These are people who have left a place which they can’t go back to. If they don’t have any papers, any passports, are they just at the mercy of whatever circumstance they find themselves in?

Jill Goldenziel: Stateless persons, very simply put, don’t have citizenship, anywhere.  There are two international conventions on statelessness that many countries have signed. But stateless people often cannot leave their countries of habitual residence. They can’t can’t necessarily access government benefits in their countries of origin because they can’t get ID cards since they're not citizens of the state. So they are among the most vulnerable people in the world, politically vulnerable, for this particular reason. Statelessness overlaps with all of the categories of migrant that I’ve defined already.  You can be a stateless refugee, you can be a stateless migrant, you can be a stateless forced migrant or displaced person.

VI: We now see groups of refugees and migrants being held hostage in sprawling camps in Greece, Turkey, and in some African countries for political reasons. Faced with opposition to increased numbers of migrants and refugees at their borders, the European Union pays considerable sums of money to hold these people back. How is this ever going to be resolved if these people are political hostages as well as migrants or refugees or displaced people?

Jill Goldenziel: I don't think the migration and refugee crisis is ever going to resolve itself - certainly not in the coming years. What I do see, for better or worse, is more third country agreements happening, like what's going on between European countries and Turkey, where countries effectively pay other countries in order to handle refugee and migrant populations for them.

VI: These are not payments to integrate these refugee and migrant populations into their countries but just to hold them.

Jill Goldenziel: The payments could involve integration if countries chose to do that. I think that many are hoping the Syrian civil war will end at some point. In the meantime we are going to have an entire generation of children who have grown up somewhere else with little knowledge of their own country’s culture, and in some cases, even the language. And it’s not realistic to believe that people who have developed business interests in their country of exile will necessarily leave either. It's going to be very difficult for Turkey, for example, to kick all of the Syrians out, even if the war were to end.

I think it is incorrect to treat migrants and refugees as a short-term crisis or a short-term displacement. Countries could use the money they’re paying to third countries or to maintain camps to help integrate refugees into their societies. Depending on what level of integration we're talking about, some of that is happening. refugees and displaced people are attending school in Turkey. Most Syrian refugees in the region are urban refugees. They're not actually in camps and in Jordan, some of the camps have really become economic centers.

Politically, it might not be feasible for examples like these to be called integration because that implies that the refugees are staying for the long term and that refugees are resigned to that future as well. One of the biggest problems we see with migration in general, not just forced migration, is xenophobia and the host country populations not accepting entry or integration of refugees and migrants.

If a country is not, from the top-down, trying to develop an integration strategy, that is going to pose an obstacle to integration and also possibly cause societal unrest.  Third country agreements technically are legal, but if the country of first asylum that is paying another state to host refugees on its behalf is responsible for the human rights of those refugees.

Historically, these third country agreements have not worked out. The country of first asylum is usually either unwilling or unable to guarantee the rights of refugees or migrants within the third country. It will be interesting to see how future third country agreements will work out and I think it's going to be a case-by-case basis. Certainly, if some of the Southern European countries were paid by Western European countries to host migrants, we'd be in a different situation than in the past.

VI: Do you see any models of integration working, at least in a limited scale? Germany took a lot of migrants and refugees a couple of years ago , Sweden as well took a large number. Are these becoming best practice examples or are they just too limited and perhaps not as successful as we think?

Jill Goldenziel: I think they've largely been successful, for the most part. One of the things that really impressed me was that Germany was handing refugees and migrants copies of their constitution when they came into the country. This really struck me because first of all, Germany is obsessed with its constitution. They're the only country in the world that is as obsessed--perhaps even more obsessed--with its constitution than we are. After World War II Germany really needed to overhaul its government for obvious reasons. It adopted a new constitution to do so and it's very much a symbol that Germany rejects what it stood for before WWII and is now a new society. 

Secondly, the symbolism is extremely powerful. Germany is handing to someone who has perhaps never known what human rights are, a copy of a document that guarantees human rights. It’s making the statement, "Welcome to Germany. These are your rights, which you may never have experienced before, that you're going to have here." That’s extremely powerful. And it is also a sign that the German government is willing to welcome new arrivals and start integrating them with German civic values right from the start. That is something that other countries have been far less successful in doing.

I do think it's too early to tell how well integration will work out because Germany started accepting massive numbers of migrants only in the middle of the last decade. But they were being very proactive about integration from the beginning, so that makes me optimistic.

VI: You work with the United Nations on migrant and refugee issues. A Global Compact on Refugees has recently been adopted and there is a proposal in the works for a Global Compact on Migration. What are the objectives of these compacts? Can they be effective or are they going to be articulations of ideals that will be difficult to implement.

Jill Goldenziel:  I worked on the Global Compact for Migration at the UN and now I'm involved in some of the implementation and follow-up. The full name is the Global Compact for Safe, Orderly and Regular Migration.  The joke during the negotiation process was that the Global Compact was meant to oppose the unsafe, disorderly, and irregular migration that we have had in the past. It was meant to be a non-binding document. Had it been a binding document, it would have taken ages to draft and states would have been very reluctant to sign on, to say the least.

The idea was to come up with a framework which as many states as possible in the world would agree on. The process started in 2016 with two reports by the Secretary General's office which recommended the formation of two global compacts, one on refugees and one on migration.

This was kicked off at a big UN Summit for Refugees and Migrants in September of 2016 which launched the process for each one. The Global Compact for Migration was negotiated by states. It looked very much like a treaty even though it wasn’t. It involved a process that was very treaty-like in it's making. It was negotiated by states. 

From the first day, the UN really went out of its way to include input from states from all regions of the world.They held regional efforts on every continent to get ideas for what the Global Compact should look like. They brought in civil society representatives from the beginning. I was one of them, representing the Academic Council on the UN System. (I was not representing the US government, obviously). They pulled in academic civil society representatives from the beginning to give input on what the document should look like. In particular, they wanted academics to weigh in on the data collection issues, because part of the plan from the outset was that the Global Compact would be evidence-based.

The UN had a separate accreditation process for small NGOs that didn't necessarily have the capacity or the time to get accredited with ECOSOC, the Economic and Social Council of the UN which ordinarily you would have to be to participate in an initiative like the Global Compact for Migration. They wanted broad participation in these meetings. They've really made an effort to be as inclusive as possible and include as many refugee and migrant voices as possible.

After all of that, there were six rounds of negotiations on the draft. They painstakingly negotiated every comma, every period, pored over the text. Again, the negotiations process looked very much like a treaty negotiation. The Compact was informally affirmed in July of 2018. Then there was a conference to formally adopt it in December of 2019. 

Something strange happened in the interim. In the two to four weeks leading up to the conference, countries started to pull out. Belgium's government collapsed over the issue of this non-binding compact.  On the day that I was on the plane to Morocco en route to the signing conference, the United States released a national statement condemning the Global Compact, (the U.S. had pulled out of the process before the negotiations). The U.S. encouraged other countries to pull out as well because somehow this Compact was going to infringe on countries' sovereignty even though it's a non-binding agreement and they believe its an effort by other states to force the U.S. to follow an agreement it had not signed on to.

This just looks suspiciously like they’re treating the Global Compact like a treaty. They're running scared of a non-binding document. That suggests that it can still be a powerful instrument even though it's not binding. 

What is it? 

The Global Compact for Migration has 26 objectives, each of which has a set of actionable commitments that states make. Again, it uses the word "commitment" which does sound treaty-like but the document clearly says that it’s non-binding. 

Effectively, the Compact provides a menu of best practices from which states can choose in order to achieve the objectives. Some of them are very concrete objectives like issuing death certificates for migrants or keeping track of missing migrants. Some of them are more vague like combating  xenophobia, which is much more difficult to implement and also difficult to measure.

I think we will see variance in commitment to the objectives of the Compact. Of the Western European states, Norway comes to mind. Norway had been very supportive of the Compact and very vocal during negotiations. At the Conference to adopt the Compact, their representative seemed less enthusiastic. She got up reiterated the fact that the agreement is non-binding and does not encroach on their sovereignty. Norway was one of many states that emphasized sovereignty and the non-binding nature of the Compact when at the podium. Given that the document repeatedly says that it's non-binding, it seems like a strange thing for states to do unless they're really worried about this.

On the other hand a few African states expressed hope that the document would become international law someday. So I think we're going to see variance in willingness to commit to and implement the Global Compact. 

But the Compact is the only thing we've got on the shelf that supplements the Refugee Convention  and has concrete objectives to manage migration. It's a playbook and it's the only playbook that's out there. Countries that are looking to cooperate on migration in the future, that's the first thing they're going to dust off. It will be the first point of conversation and debate. I think it will have an effect. How much of an effect for global cooperation it will have, I don't know. I think that it is most likely to work at the regional level.

VI: At least it's an acknowledgment that the persistent global migration/refugee crisis necessitates international cooperation. This cannot be solved one situation at a time, rather it requires a systematic approach for real solutions to become part of the international order.

Jill Goldenziel: Like many serious global challenges, the wellbeing of migrants and refugees is the responsibility of the international community. 

VI: Let's turn to the situation along the southern boundary of the United States. The Trump administration is implementing policies to relocate asylum seekers to third countries, mostly in Central America. How is this reflected in the UN objectives and what violations of law are going on on the U.S. southern border?

Jill Goldenziel: It is not reflective. This is not what the UN had in mind with the Global Compact on Migration, but again the United States decided not to participate in the Compact. Actually, after the Trump administration announced its initial family separation policies and pictures came out of children in cages at the border, there was fierce debate in the last round of the Global Compact for Migration negotiations over whether to include language in the Global Compact that said that child detention should be condemned under any and all circumstances.

That proposal was promoted by 20 countries--including most Latin American countries-- and it's no surprise to why. But it failed in the end. Any prolonged detention, prolonged separation of families, sending migrants or asylum seekers back to Mexico if their human rights are likely to be violated there, or if they're in danger of persecution--these actions are all certainly in violation of international law. There are other international laws being violated at the border as well.

VI: Is this very different than what the European Union has been doing and paying Greece and paying Turkey to hold migrants, refugees, asylum seekers in camps indefinitely?

Jill Goldenziel: Most of the refugees in Turkey are still urban refugees. While there are some reports of people being repatriated from Turkey to Syria, Turkey is still hosting 3.6 million Syrians, and at least at first, chose to do so voluntarily. This is very different from what’s happening in at the U.S.’s southern border. 

VI: The large number of people coming out of the South and Central American countries - from Venezuela, Guatemala, El Salvador and Honduras - many say they are fleeing violence in their lives from gangs or government forces, is this a valid qualification for asylum status under the UN guidelines?

Jill Goldenziel: Not necessarily. There are 4.6 million displaced Venezuelans, most of whom are in the region, according to government statistics--and government statistics tend to be low vis a vis the actual amount. Another two million-plus are living legally within the region itself or throughout the world. Of those 768,000 have applied for asylum. Not a low number by any means, but the vast majority of Venezuelans who fled have not applied for asylum at this point.

I don't think the vast majority of them would meet the international legal definition of refugee. However, there is a non-binding agreement that many Latin American countries have signed - the 1984 Cartagena Declaration. This agreement has a broader definition of refugee, which would include people fleeing generalized violence, social disorder, or events disturbing public order. That probably covers anyone fleeing Venezuela or several other Latin American countries right now. The Cartagena Declaration has been incorporated into the domestic law of nearly all Latin American States. 

The general answer, as to whether most migrants coming into South American countries, Mexico, or to the U.S. border would qualify for asylum status under UN guidelines is no. I don't think they would meet the definition as it currently stands. But some U.S. asylum courts have found certain victims of Central American gang violence to be “members of a particular social group” and thus qualify for refugee status. 

VI: We have covered a lot of points concerning the refugee and migrant crisis, which is obviously severe and will not be resolved in the near future. What progress can we look forward to? If you are advising refugee and migrant groups, what is their best hope?

Jill Goldenziel: I think that the UN will work hard to adopt the Global Compact for Migration. I think they should. I think that's probably the best hope because the countries of the world have, by and large, agreed to it.  A total of 164 countries did sign on at the end. That's the best playbook we have, that's the best chance we have for developing norms. I think that countries should cooperate to work on the Compact’s objectives. If I were advising the UN, I would try to encourage them to do that. Mostly, implementation is going to happen because civil society supports it.

It's imperative for countries to work with their civil society organizations. Certainly any human rights law that has ever succeeded has done so because civil society organizations got involved. That's been borne out by research over and over again. I think we would see that here as well. 

I would advise those in the United States who are interested in helping refugees and migrants to work with and donate to civil society organizations to keep doing the good work they're doing both to give humanitarian assistance to refugees and migrants.

Also to support the legal challenges that are necessary in order to convince the current administration to change its policies. It is necessary to raise awareness because it is easy to forget about refugees and migrants given the global context and climate in which we're living. Civil society organizations really need to work hard to keep our candidates focused on it and keep their eye on the ball because otherwise the will to assist refugees and migrants could very easily slip away.

Dr. Jill Goldenziel is Associate Professor of International Relations at Marine Corps University-Command and Staff College, where she teaches Security Studies, International Law, the Law of War, and Lawfare and Information Operations.  She is also an Affiliated Scholar at the University of Pennsylvania’s Fox Leadership International program. Dr. Goldenziel’s scholarship focuses on international and comparative law, constitutional law, human rights, refugees and migration, information warfare, and lawfare.  She is a specialist in the law and politics of the Middle East. Since 2016, Dr. Goldenziel has participated in High-Level Meetings related to the UN Global Compact for Migration and its implementation, including speaking alongside world leaders before 164 UN Member-States at the Intergovernmental Conference to adopt the Global Compact in Marrakech, speaking at the 2018 Inter-Parliamentary Union/UN Annual Inter-Parliamentary Hearings, and submitting draft language for the New York Declaration for Refugees and Migrants and the Global Compact for Migration. She is writing a book on how politicization of refugee and migration crises harms the U.S.’s national security.