Reforming the Refugee Regime
In the current volatile global political environment, more and more persons are forced to flee their originating county from fear of political persecution. Specifically, persecution because of their race, religion, nationality, or affiliation with a particular social or political group; and are unable to avail themselves of the protection of that country, or unwilling to return there, for fear of persecution. These political refugees need specific international laws to protect their rights and provide them with the ability to relocate and have access to basic human necessities. Today, existing international human rights law on the topic is not effective in resolving this area of acute social conflict because it fails to be comprehensive and ensure the safety and well-being of the involved persons. This lack of overall effectiveness, in the established system, is evident in the current refugee crises of Afghanistan, Somalia and Palestine, just to name a few. In addition, recent conflicts such as the one in Rwanda, have also given light to sets of problems within the refugee protection system. The string of crises in Africa and Southeast Asia during the past decade has brought laws regarding international political refugees to my attention and motivated my initial research.
Political refugees are a class that has grown greatly ever since it was formally defined in the 1951 United Nations Convention on the Status of Refugees. Today, the collection of conventions, treaties, IGO’s and NGO’s, precedent, and government funding dedicated to protect and assist those displaced from their country by persecution, or displaced by war in regions of the world where agreements or practice have generally extended protection to persons displaced by the devastation of war, even if they are not specifically targeted for persecution, is known as the international Refugee Regime. The Refugee Regime centers on the United Nations High Commissioner for Refugees as the primary agency, and around the Convention (1951) and Protocol (1967) on the Status of Refugees as foundational legal documents (Keely, 2001: 304). Despite this existing legal framework, political refugees continue to be one of the most under-protected and legally mishandled groups of people especially in third world countries and other environments where the political climate is not always as stable as in developed nations. There needs to be a more efficient and effective set of international human rights law put into place in order to ensure political refugees all over the world are taken care of and protected by the international community efficiently and quickly. This paper will first delineate the existing legal context and institutional framework for refugee protection. Then, I will provide a brief review of relevant scholarship pertaining to refugee studies. Finally, I will argue that the existing Refugee Regime must be fundamentally updated and clarified in order to respond to the changing identity and needs of refugees.
Historically, only after WWII and the massive displacement of persons that followed, did the international community recognize the need for a unified doctrine that would protect those affected. The first step in addressing the problem was to clearly define a refugee and their rights. The initial attempts were made in 1948, when in the UN Constitution of the International Refugee Organization, the term ‘refugee’ was formally defined as, “…a person who has left, or who is outside of, his country of nationality or of former habitual residence, and who, whether or not he had retained his nationality…” is either a victim of the “nazi or fascist regimes or of regimes which took part on their side in the second world war,” or is considered part of the “Spanish Republicans and other victims of the Falangist regime in Spain,” and the term also applied to persons who were already considered refugees before the outbreak of the WWII “for reasons of race, religion, nationality or political opinion.” This definition was expanded when the Convention Relating to the Status of Refugees was adopted by the United Nations on 28 July 1951, which entered into force on 21 April 1954.
The 1951 Convention defined a refugee as a person who, “As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted ... is outside his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” The restriction of 1951 was placed on refugees in order to limit the obligations of States to refugee crises known to exist during that time. Supplementing the 1951 Convention, the Office of the United Nations High Commissioner for Refugees (UNHCR) was established on January 1, 1951, in order to ensure protection for asylum seekers. The Statute of the Office calls upon the High Commissioner to provide international protection, under the authority of the United Nations, for refugees falling within the competence of his Office. The High Commissioner's competence extends to persons who fall in categories, which are very close to, though not identical with, those defined and protected in the 1951 Convention. Through these definitions the High Commissioner is capable for protecting refugees regardless of any dateline or geographic limitation. (UNHCR Handbook, 1992).
Eventually, the 1951 limitation proved unnecessary, and the 1967 Protocol on the Status of Refugees was drafted. The 1967 Protocol applied the provisions of the 1951 Convention to refugees as defined in the Convention, but without the 1951 dateline. In addition to the definition solidified in the 1951 Convention and the 1967 Protocol there exists a slightly different definition of ‘refugee’ in the regional agreement of the Organization of African Unity (OAU). The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, drafted by the Assembly of Heads of African State and Government, defines a ‘refugee,’ in the same way as the UN Convention and Protocol with the addition of a second section that adds, “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.” This additional clause reflects the concerns of African States who have been or were still colonized by foreign powers and intended to ensure that those fleeing oppression would be granted asylum. The addition of the second clause only two years after the 1967 Protocol entered into force foreshadowed the upcoming challenges that would face the specific wording of the UN agreements. The difficulty with drafting any treaty to protect the rights of individuals is that you limit and extend protection simultaneously. This limiting effect of the 1967 Protocol has created notable issues for some within our current refugee protection system as the ‘letter’ and the ‘spirit’ of the Protocol have diverged over time.
One of the primary downfalls of the Protocol is its failure to specify whether or not it pertains to those seeking asylum from civil wars and armed conflicts. People from countries with such civil unrest make up a large number of asylum seekers, which places them in a dubious position because the 1951 Convention is unclear about their status. The fact that refugee jurisprudence tends to exclude these claims from the sphere of the 1951 Refugee Convention except in extraordinary circumstances is reflective of the stance that the Convention mainly governs the protections of persons from countries in a state of peace. A further issue lies in the identification of the relevant international law framework in these cases. Hugo Storey and Rebecca Wallace argue that the applicability of a modern approach, which evaluates persecutory harm by reference to norms of international human rights law (IHRL), is debatable when the country of origin is in a state of civil war or armed conflict. This situation leads to the question of whether the norms to be applied can be confined to those found in major international human rights apparatuses. If you attempt to do so you are forced to realize that you are aspiring to match norms designed for countries in a state of peace to countries in a state of war. Therefore, Storey and Wallace contend that when dealing with claims by persons escaping civil wars and armed conflicts, the relevant norms must incorporate the international standards set out in the established body of international humanitarian law (IHL). (Storey, 2001). In cases of civil war, the IHL provides a significantly greater deal of protections for the civilian population. This shift from approaching the issue with a perspective stemming from IHRL to one based in IHL is a crucial stepping stone to resolving the issue with determining the status of those fleeing civil wars or small conflicts by ensuring the Convention’s applicability is extended to countries in a state of war and not only peace. However, even if IHL norms are referenced when attempting to determine refugee status the burden of proof still lies with the claimant, thus the ability to obtain reliable general country information would be another essential component of an updated refugee designation process.
Related closely to the lack of specificity in the Convention language, is the general lack of convergence in asylum recognition rates in Western Europe. Western Europe is an interesting geographic region to examine because all of the States are parties to the Geneva Convention, the European Convention on Human Rights, and the UN Convention against Torture. Therefore, due to the unified system of applicable international law, refugee claims should logically, be assessed only with regards to the facts of the claim. However, as Eric Neumayer showed in his research, the rates do not converge despite the fact that all of Western Europe is held to the same international treaties. These discrepancies illustrate a fundamental problem with the current system, specifically, “…rates of recognition are lower for asylum seekers coming from poorer countries…This suggests that those coming from poorer countries will find it harder to convince the decision authorities that their claim of persecution is genuine and that they are not merely economic migrants” (Neumayer, 2005). The fact that even asylum decisions in Western Europe are influenced by external and internal factors despite perceived legal unity reflects in-part the shortcomings and vagueness of the established international refugee law. His analysis demonstrated that even Western Europe has a long way to go before they offer anything resembling unified merit based recognition rates for asylum claims.
Further deepening the issues with the convention is the emerging narrative with regards to cross-border refugee movement. Sharon Pickering argues that what were once matters of foreign policy are now turning into matters of crime. She notes that previously attitudes towards refugees were determined in large part by foreign policy, particularly during the Cold War when admitting refugees was seen as a useful tool for promoting a particular ideology. The growing recent trend in perceiving refugees as transnational criminals could be primarily media driven, with the intertwining of forced migration and transnational crime largely reinforced by national, international and inter-regional policy maneuverings. Governments of the global North, where most refugees intend to flee, have begun to “routinely reduce forced migration to human smuggling, which in turn is considered another example of transnational crime” (Pickering, 2007). An example of this phenomenon can be seen in popular attitudes towards undocumented migrants from Mexico within the United States. Human smuggling is often placed in the same category as drug trafficking and the movement of other illicit goods across borders; therefore, it is seen as a matter for border policing efforts, which results in the refugee being also dealt with as a policing matter. With this evolution in common perception it is important to note that the Refugee Convention clearly recognizes that, “…while flight from persecution may reasonably involve unlawful activity, this should not compromise an application for protection (Article 31)” (Pickering, 2007). Despite these protections guaranteed by the Refugee Convention, many States in the global North have adopted policies that focus on the illegality of cross-border migrant movements. This focus on forced migrants as an external threat depends on a preoccupation with the nature of the journey, rather than with the persecution necessitating the migration. Pickering concludes with the argument that the cross-border movement of refugees, specifically cases involving human smuggling, must become a human rights concern instead of a policing concern.
The position expressed by Pickering is reinforced by the emerging notion that the concept of human security is on its way to changing the practice and institutions of global governance. Human security refers to, as former Canadian minister of foreign affairs Lloyd Axworthy defined, “…an effort to construct a global society where the safety of the individual is at the centre of the international priorities and a motivating force for international action; where international human rights standards and the rule of law are advanced and woven into a coherent web protecting the individual…” (Oberleitner, 2005). Gerd Oberleitner further clarifies the concept by stating that the core issues relating to human security include a, “focus on the individual; the waning of state sovereignty and the rise of new actors; the shift in our understanding of security; the need and risks of "saving strangers" through humanitarian intervention; …the conduct of complex peace missions; and the need for an adequate reaction to new threats” (Oberleitner, 2005). Oberleitner draws upon the recent shift of threats to national security from other organized States to complex ideological groups who are unrestrained by territorial borders, to argue that current institutions and legal frameworks that focus on the nation-state as the primary actor fail to respond to the modern reality that globalization has begun to limit the power of the individual State and expand the role and reach of the individual. Human security begins to address these changes with the eventual goal of placing the security of the individual on the same level as the security of the state within the legal system. With regards to refugee protection the rise of human security as a political strategy or agenda would specifically prevent the State from infringing on the rights of individual asylum seekers and forced migrants in the name of border security or state sovereignty. If the security of the individual would be the primary concern of international and national law, then instead of viewing refugees as ‘stateless’ people who must be placed back under the protection of a specific country, refugees would already have full protection of rights outside of any specific state and thus would have greater mobility and access to opportunities for relocation.
The massive amount of refugees currently unable to repatriate to developed nations where there exists greater opportunities for advancement necessitates immediate action and implementation of reforms before additional persons are prevented from fulfilling their potential. In 2002, the United Nations High Commission for Refugees estimated that in 1999, only about 28 percent of the estimated 11.6 million refugees worldwide were hosted by developed countries (Neumayer, 2005). This means that while the numbers of asylum seekers coming to developed countries in general and Western Europe in particular have grown substantially over the last several decades, it is developing, not developed, countries that have to deal with the vast majority of refugees. Due to this lower level of development in the States hosting the majority of refugees, the sheer size of recent displacements can quickly overwhelm the host countries, making the task of providing a safe environment for the refugees very difficult, if not impossible without outside intervention. To place recent refugee crises in perspective, according to the UN High Commissioner for Refugees (UNHCR), 900,000 Somalis in 1991, 3.5 million Bosnians from 1992 to 1995, 1.25 million Rwandans in 1994, 720,000 Kosovar Albanians in 1998, 300,000 Angolans in 1998-1999, and 450,000 Sierra Leonians from 1999-2002, were displaced due to regional conflicts (Boaz, 2002). These recent large scale movements of populations due to persecution, to primarily developing nations, have become relatively commonplace and continue to grow in size. The realities of modern refugee crises necessitate a reimagining of the existing international refugee protection policy, which relies on outdated notions of the nature of asylum seekers.
In response to the scholarship relating to the current system of refugee protection summarized above, several recommendations for reform emerge. In order to address the lack of protection for refugees seeking asylum from civil wars and armed conflicts, the Convention and Protocol on the Status of Refugees must be expanded to apply to countries in a state of war. This can be achieved by basing the evaluation of persecutory harm on norms established specifically in international humanitarian law. In addition, in many States where civil wars take place there is often a lack of reliable up to date information on the general conditions, which limits the ability of asylum seekers to demonstrate persecution. In order to improve the flow of information, non-governmental international humanitarian organizations that are generally on the ground during such conflicts should work closer with governmental agencies responsible for handling claims for asylum. Once governmental organizations have credible information on the general conditions in a given country, they will be able to more effectively extend protection to persecuted groups. To address the lack of convergence in asylum recognition rates in Western Europe and elsewhere, and ensure claims are evaluated purely based on merit, the Convention and Protocol must be reinforced by an official system for monitoring rates of refugee acceptance and sanctions must be administering in cases where clear discrimination is found. Finally, the recent trend of criminalizing forced migration should be addressed with a firm re-affirmation of the guidelines established by the Convention that prevent illegal action from effecting claims for asylum by refugee groups. Furthermore, forced cross-border migration should be openly categorized as a human rights concern necessitating the full attention of the international community. All of these proposed solutions to the current problems with the established Refugee Regime revolve around the acceptance of the idea of human security as the framework for future systems of global governance. The individual must be protected both within and outside of the State; therefore, an international system of law that revolves around the security of the individual over the security of a particular state must be implemented in order to respond to the changing nature of conflict and power distribution made possible by recent advances in globalization. With the implementation of these reforms we can move towards a more efficient and effective set of international human rights law that ensures political refugees all over the world are taken care of and protected by the international community efficiently and quickly.
Assembly of Heads of African State and Government, OAU CONVENTION GOVERNING
THE SPECIFIC ASPECTS OF REFUGEE PROBLEMS IN AFRICA, 10 September 1969, Organization of African Unity, CAB/LEG/24.3
UN General Assembly, CONSTITUTION OF THE INTERNATIONAL REFUGEE ORGANIZATION, 20 August 1948, United Nations, Treaty Series, vol. 283, p. 4-24.
UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR Handbook), 1992, United Nations, HCR/IP/Eng/Rev.1.
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Oberleitner, Gerd. (2005). Human Security: A Challenge to International Law? Global
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Storey, Hugo, & Wallace, Rebecca. (2001). War and Peace in Refugee Law Jurisprudence. The
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Keely, Charles B. (2001). The International Refugee Regime(s): The End of the Cold War Matters. International Migration Review, Special Issue: UNHCR at 50: Past, Present and Future of Refugee Assistance, 35(1), 303-314