3. “Protection Space”

“Compulsory Voluntary Repatriation”

The relation between the Better Shelter of a declining but normative camp humanitarianism and the “protection space” nominally extended to the growing urban refugee population is not merely paradigmatic; it is historical. These two articles of contemporary humanitarian doxa—the Better Shelter and the “protection space”—began to complement one another and, in the process, complete the global shelter imaginary in the context of a crisis of classification that took place in 2005. Then, a group of Sudanese migrants who had been denied refugee status by UNHCR in Cairo decided to build their own refugee camp directly in front of the agency’s offices to protest their relegation to what Pascale Ghazaleh has called a “closed file limbo.”3 For more than three months, approximately two thousand people self-interned in their own refugee camp in Mustapha Mahmoud Park and organized their lives through committees tasked with maintaining the community. This, so that they might better appeal and protest the manner in which their asylum claims had been adjudicated by the UN. (Numbers varied from 1,500 to 2,500 souls.)

The Sudanese protesters’ claims against UNHCR may well have been motivated by self-interest, but they also exposed the workings of a geopolitics of abandonment that goes against the agency’s mandate. In the course of its efforts to assist populations trapped “between sovereigns”—that is, between the will of states that generate or receive the dispossessed—UNHCR has been repeatedly forced to erode the first of its mandated functions, namely international protection of rights, and compromise on the second, which requires it to offer assistance leading to “durable solutions.”4 Unable to challenge state parties to meet their own obligations pertaining to the legal protection/asylum of refugees, the agency has sought to fill the gap and, over time, also found itself the world’s chief “administrator of misery.”5 It is a government of limbo for those who cannot resolve their asylum status but who also cannot move on. Where the “search for durable solutions” once referred to the “repatriation, integration, or resettlement” of the dispossessed, it is now a term of art that refers to humanitarian governance of those for whom the right to protection/asylum is increasingly a fiction, even for the UN.

The Sudanese asylum seekers’ key demand was that UNHCR resume the practice of conducting individual refugee status determination interviews (RSDs). In June 2004, UNHCR suspended such interviews and “automatically provided all applicants with yellow asylum seeker cards, which offer temporary protection against refoulement.”6 The agency seemingly took this step in response to an announced ceasefire between the government of Sudan and the Sudan People’s Liberation Army. But in doing so, UNHCR in Cairo weakened core protections of the 1951 refugee convention, which calls for the adjudication of asylum claims on an individual basis.7 (This statute was pushed for by Western powers, who feared the possibility that asylum could be granted en masse.) But, conversely, it also protects asylum seekers from exclusion as members of a group.8 The Sudanese protesters correctly understood the agency’s action as both a weakening of the protection mandate and a prelude to what it itself termed “compulsory voluntary repatriation”9—i.e., the pressuring of yellow or “red” cardholders who had already been denied asylum to return to Sudan on the grounds that the conditions that were, or would have been, the basis for their asylum claims no longer obtained and that therefore their status no longer required a review.

Their fears were not unfounded. In the decade following the fall of the Soviet Union, the UN effectively relaxed the standards of protection for repatriating populations and “developed terminology and concepts such as ‘safe return,’ which stipulated that conditions in the home country did not have to improve ‘substantially’ but only ‘appreciably’” in order for the UN—and not the dispossessed—to determine what might reasonably qualify as “voluntary repatriation.”10 As Gil Loescher explains, in the course of this “decade of repatriation,” the distinction between voluntary repatriation and refoulement was blurred, and UNHCR even participated in acts of forced migration.11 (The UN would eventually facilitate the repatriation of over 300,000 refugees to South Sudan, despite continuing insecurity and conflict there.) The key point here is not only that these actions resulted in mass suffering (or that the UN eroded the voluntary character of repatriation under rewordings such as “safe return”), but that in the course of doing so, UNHCR established a precedent for euphemizing abandonment-as-protection that would prove relevant to the emergence of a global shelter imaginary.

For its part, UNHCR’s Cairo office repeatedly disqualified the protesters’ standing as persons of concern to UNHCR, even as the spectacle of a self-built refugee camp in the heart of Cairo may have forced the agency to enter into negotiations with them. (UNHCR’s first response was to close its offices.)12 In a press release issued on October 30, UNHCR sought to invalidate the protesters’ requests—which, again, foregrounded concerns about refoulement by other names, and for that reason petitioned the resumption of the RSD process—and advanced two related arguments. The first was that the protesters were, for the most part, not refugees but economic migrants from southern Sudan “who fell outside the agency’s mandate” and had thus been accorded “closed file” status. The second was that the signing of the peace agreement “increased nexus requirements for status recognition and created new opportunities for protection in Sudan, so that UNHCR’s responsibility to refugees from that area changed.”13

None of this was true, as a report on the protests by the Forced Migration and Refugee Studies [FMRS] program of the American University in Cairo makes clear. The demonstrators were from all parts of Sudan, and a survey of the park population undertaken in December 2005 showed that “43 percent had yellow asylum seeker cards and 24 percent had blue recognized refugee cards” that gave them refugee status.14 The majority of these souls were or should have been “persons of concern” to UNHCR, while the remainder may have been victims of various forms of category fetishism.15 Negotiations continued, and—following the intervention of a delegation from UNHCR’s headquarters in Geneva in November—a tentative agreement was reached on December 17. The UN would reopen the RSD process and include “closed files” but, citing security concerns, stipulated that individual protesters could not return to the park after their cases had been reviewed. In a challenge to the remarkable and sustained display of solidarity practiced by the Sudanese protesters, UNHCR effectively presented them with a variation of the “prisoners’ dilemma” in which collective action and self-interest were to be treated as irreconcilable alternatives. No one defected. The protesters accepted the agreement but refused to abandon the park until all cases had been reviewed. On December 22, UNHCR communicated with the Egyptian Ministry of Foreign Affairs and indicated that “it could do no more,” thereby paving the way for the forced evacuation of the protesters.16 On the evening of December 29, approximately four thousand riot police surrounded the park, attacked the population, and killed at least twenty-eight protesters; approximately half of those killed were children, many of whom were trampled to death. The survivors were sent to Egyptian detention centers. “It is extremely sad that people had to die,” stated Astrid Van Gerderen Stort, spokeswoman for the UNHCR in Cairo.17

“Irregular Movers”

In both its attitude toward the Sudanese asylum seekers and in its strategy toward their three months of protest, UNHCR’s Cairo office had either adopted or coincidentally reproduced the commonplace attitudes of UNHCR’s institutional culture laid out in a controversial 1997 policy document concerning urban refugees.18 Largely identifying urban refugees with “irregular movers” who leave a country of first asylum for the purpose of “assistance shopping” in another, the 1997 UNHCR Comprehensive Policy on Urban Refugees sought to disaggregate opportunistic migrants from the ranks of those who might be legitimate persons of interest to the agency, and to disincentivize the behavior of what it considered professional refugees seeking further assistance in place or resettlement in third countries.19

The events in Cairo in 2005 would be credited, in part, with triggering a comprehensive reconsideration of UNHCR’s “restrictive urban refugee policy” and with the subsequent release of a new policy document in 2009. Reviewing the “negative generalizations” of the 1997 policy paper as artifacts of an institutionalized bias that favored, “unjustly, the individual treatment of urban cases compared to those in rural settlements and camps,” the new document suggests that the former policy’s concern with assistance mining coincided with the agency’s lack of concern with its own obligations under the protection mandate.20 To rectify this, “the 2009 document used the notion of ‘protection space’ as its organizing principle”:

When refugees take up residence in an urban area, whether or not this is approved by the authorities, UNHCR’s primary object will be to preserve and expand the amount of protection space available to them.21

Something is wrong here, and it bears some elaboration if one hopes to understand the proper relation between the concept of “protection space” and the extension of a global shelter imaginary. Jeff Crisp, the author of the 2009 policy revision concerning urban refugees, is correct to foreground the institutionalized biases and bigotry evident in the earlier policy document. (It is impossible to overlook the fact that the UNHCR Comprehensive Policy on Urban Refugees suggested that some national groups were, by virtue of their “nomadic traditions” or histories of “economically driven migration,” more prone to engage in forms of “irregular movement.”)22 But in fact, one of the principal concerns of the repudiated 1997 urban refugee policy document was the erosion of the protection mandate posed by an assistance paradox—a game of chicken—into which UNHCR had been forced by host states in their dealings with urban refugees.23 Both the 1997 document and the 1995 Policy and Practice Regarding Urban Refugees that informed it are, in part, responses to a condition in which some states had shifted eligibility determination (protection) onto UNHCR and then ceded responsibility for assistance in the process. The result, they argued, was that the agency “sometimes falls into a trap of providing assistance year after year in order to buy, and retain, asylum.”24 The flawed and biased reports of the 1990s were clearly misguided in thinking that UNHCR should begin to deny assistance to urban refugees under some circumstances. But it is also clear that their authors feared the creation of a condition in which assistance could become a substitute for protection.25

On the face of it, the term “protection space” merely seems to refer to the location where the UN’s protection mandate and the host state’s protection obligation/responsibility overlap and are in force, either by mutual consent or tacit agreement. There, asylum seekers and refugees exist in a legal zone “free from persecution and from which they will not be returned to a territory where life or freedom would be threatened.”26 In context, “protection space” also implies an extension of that zone to places beyond camps—which are, historically, the normative abodes of protection itself—in order to address a perceived protection “gap” among the dispossessed. Nothing could be further from the truth: as various scholars of international refugee law have shown, there are originary differences in the definition of the term “protection” as it appears in the governing legal instruments, and these have generated vigorous debates concerning its meaning and import.27 Is protection to be understood in terms of surrogacy—that is, as the extension of responsibilities abrogated by the state? Or does it demand, prima facie, a broader conception of the term that extends beyond the fulfillment of a legal and political obligation to ensure the rights of the dispossessed? On the one hand, UNHCR has answered the question in the affirmative. On the other, the perceived need to expand the given definition of protection has resulted in what Stevens has, somewhat skeptically, described as a “protection industry” whose product/principal commodity is a package of neologisms for rights and obligations that no intergovernmental body can actually deliver or guarantee:

the literature abounds with new concepts—“temporary protection,” “surrogate protection,” “complementary protection,” “humanitarian protection,” “protection space”—which sit alongside the old of “international protection” and “diplomatic protection.”28

The “language of protection” cannot be disambiguated. On the other hand, its official genealogy begins to lay bare the problem that the perceived need for a term like “protection space” exhumes but cannot resolve. A UNHCR Policy Development and Evaluation Services (PDES) report that served as a basis for the urban refugee policy document of 2009 rehearses a bifurcation of mandates that was repeatedly enacted by subsequent claims for “protection space” over the course of the term’s career. In it, “protection space” refers, first, to an “expanded notion of surrogacy” that encompasses “all activities through which the rights of refugees and asylum seekers are ensured.”29 A conceptual shift follows: adopting the logic of an Inter-Agency Standing Committee [IASC] model referred to as “the egg,” the expanded space of protection is no longer to be identified solely with the state and (the sites of) its obligations to the dispossessed—typically, camps—but with refugees and the rights they carry with them in a deterritorialized albumen of international protection.

But the PDES report also introduces a second meaning/origin/etymology contrary to the first: “in countries sensitive to being seen as countries of asylum, protection space is used as a euphemism for ‘asylum space.’”30 As a semantic artifact of deference to sovereigns, the term “protection space” refers to a zone of coaxed state obligations to protection rather than to a given “egg” of rights. In a syntagmatic fashion, the report then links “protection space” with the concept of “humanitarian space” (itself a correlate of the “humanitarian operating environment”) to describe what is, in the final analysis, a space of assistance necessary to secure protections that are revealed to be as aspirational by the second definition as they are treated as complete in the first.31

To be clear, the extension of protection implied by a deterritorialized concept of “protection space” is at the same time its revocation. That logical contrariety—irreducible because it describes the constitutive contradiction between the positive sovereignty of states and the negative sovereignty of the international system—is here simultaneously acknowledged and disavowed. Better Shelter’s advocates treat the state of permanent impermanence—between impossible “resettlement” and unthinkable “refoulement”—in exactly the same way: as a mere sequencing problem. To the degree that the PDES document defines “protection space as an environment which enables the delivery of protection activities and with which the prospect of providing protection is optimized,”32 it splits the difference between the human “right to have rights” and the state’s role as their guarantor into a single fantasy—in the complex psychological framing of the term—that is both “anticipatory and retroactive.”33 Protection space becomes the imagined form of assistance necessary to realize the same protection space as a given zone of rights.

Abandonment as Hospitality

From the standpoint of the global shelter imaginary—from the standpoint of the humanitarian order’s subordination of the refugee to the given notion of refuge—the question here is not what protection space fails to deliver to the dispossessed but rather what work it does for the current humanitarian order. What does the elimination of protection under the sign/image of its universal extension actually potentiate? We are offered, after all, a kind of politics in which human beings are imagined to be surrounded by a bubble of rights/protection they can take with them anywhere, in a context where the most minimal protections once offered on condition of humanitarian internment are themselves rendered precarious.

Indeed, this inverse relationship between claims for a new, extensible, and universal image of protection, on the one hand, and the abandonment of the protection mandate, on the other, points toward a provisional answer. This is that UNHCR’s regular acknowledgments that protection space and its “sister concept,” humanitarian space, are always “shrinking” seem to coincide with—and motivate—further expansions of the protection space argument. For example, the public statements of Erika Feller—who was UNHCR’S Assistant High Commissioner for Protection in the years following the adoption of the 2009 urban refugee policy—refer to protection space in relation to a degraded “asylum architecture.” This even as she continued to normalize the concept. The more Feller spoke of protection space, the more protection became something notional, and the more she indicated that there was “less room to act,” the more that acting—in the sense of a dramaturgical response—became a normative response.34

And that is the point. This triumph of a notion of protection indistinct from assistance—or more properly, the success of a syntagmatic substitution whereby assistance presents itself as a surrogate for surrogate rights—is co-constitutive with transformations in the global shelter imaginary. If the Better Shelter partnership between the world’s largest provider of home furnishings (IKEA) and the planet’s biggest refugee landlord (UNHCR) brilliantly instituted architecture as a plenipotentiary for the valorization of rightless relief, then protection space—which aimed to contend with the planet’s urban refugees—introduced itself as both a crisis and a market opportunity in the further “imagineering” of assistance-as-protection.