The recent announcement on February 5 by the United Nations that up to 70,000 or more Syrians are amassing on the border with Turkey following military assaults on Aleppo—with the threat of several hundred thousand more in their wake—calls into question whether any government or relief agency is equipped to deal with such numbers. The reasons for the shortcomings are not only logistical: a change to international law may be needed.

The bedrock of legislation relating to asylum is the 1951 Refugee Convention and the associated 1967 Protocol that extends its scope and time horizon. To date, there are 145 signatory countries to these. Enshrined in the convention is the injunction that asylum should be granted to those who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

The 1951 Refugee Convention is supplemented by a plethora of regional instruments, such as the European Union’s Qualification Directive—which refines and interprets its definitions—and the Organisation of African Unity’s 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, as well as a host of human rights instruments both regional and global. It is therefore not surprising that there is legal confusion and public misunderstanding around the current status of refugees around the world. Jeffrey Sachs, the noted Columbia University economist, called the present situation “muddled and contentious.”[i]

The central issue to be addressed is whether or not the Convention and associated instruments meet the needs of the 21^st century, when they were designed to deal with the aftermath of World War II and those fleeing communism.The deficiencies are many. First, assessments of whether a person meets asylum criteria must be made on an individual basis. This presents insuperable practical problems in the current situation because of sheer numbers. Compounding this, the criteria are necessarily interpreted on both an objective basis, according to the political situation in the country from which the individual is fleeing, for example; and a subjective basis, such as how an individual is reacting to events inside his or her country of origin. Assessors of refugee cases are thus confronted with a dilemma that can frequently lead to arbitrary decisions.

However, the main failing of the Convention is its absence of provisions regarding internally displaced persons (IDPs). United Nations figures put the world total of IDPs at 38 million, of which 7.6 million or 40% of the population are in Syria alone. Dealing with these people presents a greater humanitarian challenge than for those seeking asylum. In addition, there are political difficulties when dealing with a hostile or indifferent home government.

Furthermore, the 1951 Convention was designed as a purely legal instrument. It was not supposed to be a blueprint for dealing with the vast financial, logistical, and humanitarian needs of mass influxes. The office of the UN High Commissioner for Refugees was instead tasked with this issue and is the principal agency that coordinates humanitarian assistance to refugees. By definition, it is almost impossible to determine the needs of refugees sufficiently in advance, which makes planning difficult. To ensure proper resourcing, UNHCR therefore has to resort to reactive efforts, such as the pledging conference held in London on February 4^th, which garnered $9 billion USD for 2016.

What is surprising in the European case is that the EU’s Temporary Protection Directive has not been invoked in the current situation. In fact, this instrument has not been used at all since it was established in 2001. It is nonetheless specifically designed to deal with mass influx, defined as “the arrival of a large number of displaced persons, who come from a specific country or geographical area, whether the arrival was spontaneous or aided, for example through an evacuation program.” Protection in such cases would be offered for one year, and made renewable for a further year. This would seem to be an ideal instrument for the Syrian crisis, particularly since it has a mechanism for distribution of new arrivals. A possible explanation for its lack of use in the present circumstances is that EU member states are reluctant to take in large numbers displaced when there is probably minimal prospect of an end to conflict.

Some commentators have argued that the Convention be scrapped and that politicians and experts attempt to formulate an instrument that does more to address all displaced persons and help share the burden of reception. The difficulty of this approach is that potentially receiving countries might argue for a more restrictive refugee definition, while others will push for a more open one. In Germany, for example, where refugee protection is written into the constitution for historical reasons, there are moves to make reception more restrictive. The European Court of Human Rights, meanwhile, has used the expression “substantial risk” in its definition of refugees, although this again is open to interpretation.

The final act of the national representatives who drafted the 1951 Convention expressed the hope that signatories would exceed its requirements and grant “subsidiary protection” to those in need. The Temporary Protection Directive is one example of this. Even when it is invoked, humanitarian organizations tend to be critical of the level of subsidiary protection being less than that based on the Convention, and their voice needs to be more widely heard. Susan Martin of Georgetown University has described the current system as “arbitrary” and has urged a legal framework based on the need for protection rather than the triggering causes of migration.[ii]

There were academic and inter-governmental discussions regarding reform of international refugee law at the beginning of the current century, but they seem to have come to naught. To conclude an all-embracing instrument that addresses legal definitions, refugee management, and burden sharing with 145 nations is so daunting that the status quo seems to be the only option. The international community will have to live with the uncertainties as long as it is maintained.

[i]Towards an International Migration Regime The Earth Institute for European Studies https://www.aeaweb.org/aea/2016conference/program/retrieve.php?.

[ii] Re-thinking Protection of those Displaced by Humanitarian Crises https://www.aeaweb.org/aea/2016conference/program/retrieve.php?..